Deutsche Lufthansa AG v. Frank Panno
Claim Number: FA1802001772496
Complainant is Deutsche Lufthansa AG (“Complainant”), represented by Hajo Rauschhofer of Rechtsanwalt / Attorney at Law, Germany. Respondent is Frank Panno (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lufthansaemployment.com>, registered with NameCheap, Inc.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 19, 2018; the Forum received payment on February 19, 2018.
On February 19, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <lufthansaemployment.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On February 23, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 15, 2018 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@lufthansaemployment.com. Also on February 23, 2018, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On March 21, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
1. Complainant, Deutsche Lufthansa, uses its LUFTHANSA mark to promote its products and services related to the transportation industry. Complainant established rights in the LUFTHANSA mark through registration with the United States Patent and Trademark Office (“USPTO”) ( e.g. Reg. No. 1,871,600, registered Jan. 3, 1995). Respondent’s <lufthansaemployment.com>[1] domain name is confusingly similar to Complainant’s mark because it merely appends the generic term “employment” and the generic top-level domain (“gTLD”) “.com” to the fully incorporated mark.
2. Respondent does not have rights or legitimate interests in the <lufthansaemployment.com> domain name. Complainant has not licensed or otherwise authorized Respondent to use its LUFTHANSA mark in any fashion. Respondent is not commonly known by the domain name as the WHOIS information of record lists “Frank Panno” as the registrant. Respondent is not using the domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to conduct a fraudulent email phishing scheme.
3. Respondent registered and is using the <lufthansaemployment.com> domain name in bad faith. Respondent disrupts Complainant’s business by creating confusion by causing users to believe they have accessed Complainant’s official career website.
4. Further, Respondent attempts to attract Internet users for Respondent’s commercial gain by causing confusion between Complainant’s mark and the <lufthansaemployment.com> domain name. This confusion allows Respondent to use the domain name in connection with a fraudulent email address purporting to offer employment opportunities to unsuspecting Internet users.
5. Finally, Respondent registered the domain name with full knowledge of Complainant’s rights in the LUFTHANSA mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the LUFTHANSA mark. Respondent’s domain name is confusingly similar to Complainant’s LUFTHANSA mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <lufthansaemployment.com> domain name and that Respondent registered and uses the domain name in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant has rights in the LUFTHANSA mark through registration with the USPTO ( e.g. Reg. No. 1,871,600, registered Jan. 3, 1995). Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (“There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark.”). Accordingly, the Panel finds that Complainant has established rights in the LUFTHANSA mark for the purposes of Policy ¶ 4(a)(i).
Complainant next argues that Respondent’s <lufthansaemployment.com> domain name is identical or confusingly similar to Complainant’s mark as it merely appends the generic term “employment” and the gTLD “.com” to the fully incorporated mark. Similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). The Panel therefore finds that the <lufthansaemployment.com> domain name is confusingly similar to the LUFTHANSA mark under Policy ¶4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <lufthansaemployment.com> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant contends that Respondent has no rights or legitimate interests in the <lufthansaemployment.com> domain name. Where a response is lacking, relevant information includes the WHOIS and any other assertions by a complainant regarding the nature of its relationship with a respondent. See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). The WHOIS identifies “Frank Panno” as the registrant. Complainant has shown that no evidence exists to show that Respondent has ever been legitimately known by the LUFTHANSA mark. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). No evidence in the record shows that Respondent has ever been legitimately affiliated with Complainant, or known by the domain name prior to its registration. Moreover, Complainant has not given Respondent permission to use the LUFTHANSA mark in any manner. Accordingly, the Panel agrees that Respondent is not commonly known by the <lufthansaemployment.com> domain name under Policy ¶ 4(c)(ii).
Complainant argues that Respondent is not using the <lufthansaemployment.com> domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Complainant has provided evidence that Respondent uses the domain name to pass off as Complainant for the purpose of conducting a fraudulent email phishing scheme. Use of a domain name to conduct an email phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use. See Emdeon Business Services, LLC v. HR Emdeon Careers, FA1507001629459 (Forum Aug. 14, 2015) (finding that the respondent had engaged in an email phishing scheme indicating bad faith under Policy ¶ 4(a)(iii)). Complainant has shown that Respondent sent emails that contained a link to the <lufthansaemployment.com> domain name’s resolving website. The email states that the recipient has been hired and that the recipient should follow a link to fill out the “Lufthansa New Hire Form” and pay $97.00 fee for a “Criminal History Record Check.” Further, the “New Hire Form” is used to fraudulently collect the email recipient’s personal information for Respondent’s own financial gain. Thus, the Panel holds that Respondent has used the domain name in connection with a fraudulent email phishing scheme, failing to confer rights and legitimate interests in the domain name.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <lufthansaemployment.com> domain name in bad faith by disrupting Complainant’s business and creating a likelihood for confusion as to the source, sponsorship, affiliation, or endorsement of the disputed domain name to commercially benefit off Complainant’s goodwill. Using a domain name that contains the mark of another that disrupts a complainant’s business and trades upon the goodwill of a complainant for commercial gain shows bad faith under Policy ¶¶ 4(b)(iii) & (iv). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the Respondent’s use of the disputed domain names to send fraudulent emails supported a finding of bad faith registration and use under Policy ¶ 4(b)(iii)); see also Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum December 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”). Complainant provides a screenshot of the resolving webpage associated with the domain name, which is Complainant’s own website. Further, Complainant argues, without contradiction, that Respondent uses the domain name in connection with an email phishing scheme for commercial gain. Accordingly, the Panel agrees that Respondent disrupts Complainant’s business and attempts to commercially benefit off Complainant’s mark in bad faith under Policy ¶¶ 4(b)(iii) & (iv).
Next, Complainant argues, again without contradiction, that Respondent uses the <lufthansaemployment.com> domain name to fraudulently send emails to Complainant’s customers purporting to offer employment opportunities to unsuspecting users which shows bad faith under Policy ¶ 4(a)(iii). See Zoetis Inc. and Zoetis Services LLC v. VistaPrint Technologies Ltd, FA1506001623601 (Forum July 14, 2015) (“Respondent’s attempt to use the <zoietis.com> domain name to phish for personal information in fraudulent emails also constitutes bad faith pursuant to Policy ¶ 4(a)(iii).”). The emails contain a link for users to click on, where they are solicited to provide money for a background check.
Finally, Complainant alleges that Respondent had actual knowledge of Complainant’s rights in the LUFTHANSA mark at the time of registering the <lufthansaemployment.com> domain name. Actual knowledge of a complainant's rights in a mark prior to registering a confusingly similar domain name can show bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). Complainant contends that Respondent knew of Complainant’s rights in the mark due to Respondent’s registration of a confusingly similar domain name which incorporates the entire LUFTHANSA mark and the term “employment.” The Panel agrees with Complainant and finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith under Policy ¶ 4(a)(iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lufthansaemployment.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: March 26, 2018
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page