Deutsche Lufthansa AG v. James Banner
Claim Number: FA2105001943683
Complainant is Deutsche Lufthansa AG (“Complainant”), represented by Hajo Rauschhofer of Rauschhofer Kanzlei für IT-Recht, Germany. Respondent is James Banner (“Respondent”), Virginia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lufthansaphonenumber.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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 3, 2021; the Forum received payment on May 3, 2021.
On May 3, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <lufthansaphonenumber.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 May 3, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 24, 2021 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@lufthansaphonenumber.com. Also on May 3, 2021, 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 May 27, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco, 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
Complainant contends as follows:
Complainant, Deutsche Lufthansa AG, is a German-based passenger airline.
Complainant has rights in the LUFTHANSA mark through its registration with multiple trademark agencies worldwide, including the United States Patent and Trademark Office (“USPTO”).
Respondent’s <lufthansaphonenumber.com> domain name is confusingly similar to Complainant’s LUFTHANSA mark since it includes the entire mark, appending only the term “phone number” and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <lufthansaphonenumber.com> domain name as it is not licensed or authorized to use the LUFTHANSA mark. Additionally, Respondent does not use the at-issue domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use. Instead, Respondent passes itself off as Complainant to suggests affiliation with Complainant to generate business for itself.
Respondent registered and uses the <lufthansaphonenumber.com> domain name in bad faith. Respondent falsely affiliates itself with Complainant to divert business to its own webpage for profit. Additionally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the LUFTHANSA mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the LUFTHANSA mark.
Complainant’s rights in the LUFTHANSA mark existed prior to Respondent’s registration of the at-issue domain name.
Respondent is not authorized to use Complainant’s trademark.
Respondent uses the at-issue domain name to pass itself off as Complainant and offer services that are related to Complainant.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant has multiple national trademark registrations for its LUFTHANSA trademark. Anyone of such registrations is sufficient to demonstrate Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Target Brands, Inc. v. jennifer beyer, FA 1738027 (Forum July 31, 2017) ("Complainant has rights in its TARGET service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office (“USPTO”).”).
Respondent’s <lufthansaphonenumber.com> domain name contains Complainant’s LUFTHANSA trademark followed by the term or terms “phone number” with all followed by the “.com” top-level domain name. The differences between Respondent’s domain name and Complainant’s trademark are insufficient to distinguish one from the other for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <lufthansaphonenumber.com> domain name is confusingly similar to Complainant’s LUFTHANSA mark. See MTD Products Inc. v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006).
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for <lufthansaphonenumber.com> identifies the domain name’s registrant as “James Banner” and the record before the Panel contains no evidence showing that Respondent is commonly known by its <lufthansaphonenumber.com> domain name or by Complainant’s LUFTHANSA mark. The Panel therefore concludes that Respondent is not commonly known by the <lufthansaphonenumber.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Deutsche Lufthansa AG v. Mohamed elkassaby, FA 1801815 (Forum Sept. 17, 2018) (“The WHOIS lists “Mohamed elkassaby” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).”).
Additionally, Respondent used <lufthansaphonenumber.com> to pass itself off as Complainant in furtherance of Respondent’s capitalizing on the unauthorized promotion of various services related to Complainant’s business. Respondent’s <lufthansaphonenumber.com> webpage prominently displayed Complainant’s trademark and images suggestive of Complainant’s business. The imposter webpage also supplied visitors with a phone number to contact Respondent for flight booking and other services that one might expect Complainant to provide to its customers. There is thus no doubt that Respondent was intent on commercially benefiting from the at-issue domain name and its associate webpage. Respondent’s use the of the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Invesco Ltd. v. Premanshu Rana, FA 1733167 (Forum July 10, 2017) (“Use of a domain name to divert Internet users to a competing website is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.”).
Given the forgoing, Complainant satisfies its initial burden and shows Respondent’s lack of rights and legitimate interests in the at-issue domain name under Policy ¶ 4(a)(ii).
The at-issue domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present from which the Panel concludes that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First, as mentioned above regarding rights or legitimate interests, Respondent used the confusingly similar <lufthansaphonenumber.com> domain name to address a webpage designed to pass itself off as an official webpage of Complainant while providing unauthorized services relating to Complainant’s airline business. Using the confusingly similar domain name in such manner is disruptive to Complainant’s business and falsely indicates that there is a sanctioned relationship between Complainant and Respondent when there is no such relationship. Respondent’s use of the domain name thus demonstrates Respondent’s bad faith under Policy ¶¶ 4(b)(iii) and (iv). See Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii).”); see also Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 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.”).
Furthermore, Respondent had actual knowledge of Complainant’s rights in the LUFTHANSA mark when it registered <lufthansaphonenumber.com> as a domain name. Respondent’s prior knowledge is evident from the notoriety of the LUFTHANSA trademark and from Respondent’s use of an imposter webpage at <lufthansaphonenumber.com> in furtherance of exploiting Complainant’s LUFTHANSA mark for commercial gain as further discussed elsewhere herein. Registering and using a confusingly similar domain name with knowledge of Complainant’s rights in such domain name shows Respondent’s bad faith registration and use of the <lufthansaphonenumber.com> domain name pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, 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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lufthansaphonenumber.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: May 28, 2021
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page