Deutsche Lufthansa AG v. Philipp König
Claim Number: FA1605001674195
Complainant: Deutsche Lufthansa AG of Frankfurt, Germany.
Complainant Representative: Rauschhofer Rechtsanwälte of Wiesbaden, Germany.
Respondent: Philipp König of Köln, International, DE.
Respondent Representative:
REGISTRIES and REGISTRARS
Registries: NetCologne Gesellschaft für Telekommunikation mbH
Registrars: 1&1 Internet SE
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Examiner in this proceeding.
Petter Rindforth, as Examiner.
Complainant submitted: May 10, 2016
Commencement: May 11, 2016
Default Date: May 26, 2016
Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules") .
Complainant requests that the domain name be suspended for the life of the registration.
Clear and convincing evidence.
Findings of Fact:
The Complainant is the owner of the trademark LUFTHANSA, registered as an EU trade mark No. 001212539 LUFTHANSA, registered February 26, 2001, and renewed until June 11, 2019, covering goods and services in classes 6, 8, 9, 14, 16, 18, 20, 21, 24, 25, 26, 28, 36, 37, 39, 41 and 42, and the German national trademark No. 39871924 LUFTHANSA, registered April 12, 1999, and renewed until December 10, 2018, covering goods in classes 6, 8, 9, 14, 16, 18, 20, 21, 24, 25, 26 and 28. The Complainant is also the owner of international registrations of LUFTHANSA as a word trademark as well as combined with a figurative symbol.
The Complainant has provided evidence of use of the trademark, by screenshot from the website www.lufthansa.com.
There is no information on the Respondent, other than provided by the Complainant, as the Respondent has not responded.
Legal Findings and Conclusion:
Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.
IDENTICAL OR CONFUSINGLY SIMILAR
The Complainant met the standard set out in 1.2.6.1. of the URS Procedure since the Complainant has proved its right to the valid EU trade mark registration No. 001212539 LUFTHANSA (word). Further, the Complainant has proved that the said trademark is in current use by presenting printouts from the Complainants website.
The relevant part of the disputed domain name is <lufthansa> as the added top-level domain – being a required element of every domain name – is generally irrelevant when assessing whether or not a mark is identical or confusingly similar. If noted however, and as shown by the Complainant, the added top-level domain in this case may even increase the similarity as the Complainants registered office and corporate headquarters are based in the city Cologne.
The Examiner concludes that the disputed domain name is identical to the Complainant's trademark LUFTHANSA.
NO RIGHTS OR LEGITIMATE INTERESTS
As LUFTHANSA is a distinctive and well known trademark, the Examiner also draw the conclusion that the Complainant has shown that the Respondent cannot have any legitimate interests in registering and using <lufthansa.cologne>.
To summarize, the Examiner find that the Complainant has established that the Respondent has no rights or legitimate interests in <lufthansa.cologne>.
BAD FAITH REGISTRATION AND USE
According to the URS Procedure 1.2.6.3, examples of circumstances that demonstrate bad faith registration and use by the Registrant include:
a. Registrant has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of pocket costs directly related to the domain name; or
b. Registrant has registered the domain name in order to prevent the trademark holder or service mark from reflecting the mark in a corresponding domain name, provided that Registrant has engaged in a pattern of such conduct; or
c. Registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or
d. By using the domain name Registrant has intentionally attempted to attract for commercial gain, Internet users to Registrant’s web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Registrant’s web site or location or of a product or service on that web site or location.
In this case, the Complainant has shown that the Respondent has linked the disputed domain name to a “default site”, with no further content. A “default site” is not a file extension; it is a request for file with default information web site generated on domains registered by a registrar that makes the domain name accessible for other users without error messages. However, the general surfer / Internet user, seeking for information from and about the Complainant, may well draw the conclusion that he or she has reached the Complainants main web page that seems to be non-functional.
Although the Respondent has not responded, the use as such strongly indicates that the Respondent has registered and is using <lufthansa.cologne> in a way that is clearly negative for the Complainant, in order to force the Complainant to offer to buy it for valuable consideration in excess of documented out-of pocket costs directly related to the domain name. In any case, the Complainant has proved it likely that the Respondent is using, or at least in the final preparatory phase, to use the disputed domain name to attract for commercial gain, Internet users to Registrant’s web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Registrant’s web site or location or of a product or service on that web site or location.
Thus, the Examiner concludes that the Complainant has established that the Respondent has registered and used <lufthansa.cologne> in bad faith.
After reviewing the Complainant’s submissions, the Examiner determines that
the Complainant has demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain name be SUSPENDED for the duration of the registration.
Petter Rindforth, Examiner
Dated: June 1, 2016
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