Deutsche Lufthansa AG v. Biernacki Rechtsanwaelte et al.
Claim Number: FA1611001704383
Complainant: Deutsche Lufthansa AG of Frankfurt, Germany.
Complainant Representative: Rauschhofer Rechtsanwälte of Wiesbaden, Germany.
Respondent: Biernacki Rechtsanwaelte of Berlin, DE.
Biernacki Rechtsanwaelte of Naumburg, Germany.
Host Master / united-domains AG of Starnberg, Bayern, DE.
REGISTRIES and REGISTRARS
Registries: BLOG Registry
Registrars: united-domains AG
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Examiner in this proceeding.
Piotr Nowaczyk, as Examiner.
Complainant submitted: November 23, 2016
Commencement: November 28, 2016
Response Date: December 12, 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.
No multiple complainants or respondents and no extraneous domain names require dismissal.
The Complainant, Deutsche Lufthansa AG of Frankfurt, Germany, is one of the world leading airlines, which operates worldwide.
The Complainant is the owner of the trademark LUFTHANSA, registered in a number of countries/regions, such as:
EU Trademark registration No. 001212539 LUFTHANSA (word), registered on February 2, 2001, and renewed until June 11, 2019, covering goods and services in Intl Classes 6, 8, 9, 14, 16, 18, 20, 21, 24, 25, 26, 28, 36, 37, 41 and 42.
The Complainant has provided evidence of use by screenshots from the website www.lufthansa.com.
The trademark LUFTHANSA is well-known throughout the world and enjoys a reputation for a leading airline company.
The Complainant contends that the Respondent’s domain name, <lufthansa.blog>, is identical or confusingly similar to the LUFTHANSA mark, and was registered and is being used in bad faith by the Respondent who has no rights or legitimate interests in the Domain Name.
The Respondent asserts that he is making a legitimate or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue since the domain name will be used for a private, non-commercial blog. Moreover, the Respondent emphasizes that the <lufthansa.blog> was registered at the first possible date, after the preferred sunrise period had ended during which the Complainant failed to register the Domain Name.
URS Procedure 1.2.6, requires Complainant to prove, by clear and convincing evidence, 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 sets out in 1.2.6.1. of the URS Procedure since the Complainant has proved its right to the valid EU Trademark registration No. 001212539 LUFTHANSA (word). Further, the Complainant has proved that the said trademark is in current use by presenting printouts from various pages of the Complainant’s website.
The relevant part of the 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 and in this case does nothing to distinguish the Domain Name from the Complainant’s trademark. The meaning of the connected top level domain will however be further discussed below.
NO RIGHTS OR LEGITIMATE INTERESTS
The Respondent does not have any rights in the name “Lufthansa” nor is the Respondent commonly known by this name. The Complainant has not authorized Respondent’s use of its mark and has no affiliation with the Respondent. Therefore, the Examiner finds that the Complainant has established that the Respondent has no rights or legitimate interests in <lufthansa.blog>.. Such a finding is not precluded by the Respondent’s assertion that the domain name will be used for a private, non-commercial blog.
BAD FAITH REGISTRATION AND USE
The Respondent has registered and used the Domain Name in bad faith – the Complaint satisfied URS 1.2.6.3 (d). The Respondent must have known of the Complainant's trademark when registering <lufthansa.blog>.
In the light of this, registering a domain name corresponding to a famous and reputable trademark, and subsequent passive holding of such a domain, thus preventing the trademark holder from registering such a domain, is viewed by the Examiner as bad faith.
Moreover, by choosing a word “blog” as the gTLD, the Respondent has already demonstrated bad faith. As “blog” refers to the offer of information, users might expect to receive information about the Complainant and its services. For this reason, the Domain Name creates a high likelihood of confusion.
Finally, the Respondent has not submitted any evidences confirming circumstances listed in URS Procedure 5.7.
In the light of above, the Examiner finds that the third element of the policy under URS Procedure 1.2.6.3 has been satisfied.
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 names be SUSPENDED for the duration of the registration.
Piotr Nowaczyk, Examiner
Dated: December 12, 2016
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