Deutsche Lufthansa AG v. Domain Proxy et al.
Claim Number: FA1411001589985
Complainant: Deutsche Lufthansa AG of Frankfurt, Germany.
Complainant Representative: Rauschhofer Rechtsanwälte of Wiesbaden, Germany.
Respondent: Domain Proxy of Sydney, NSW, International, AU.
Domain Proxy of Sydney, NSW, International, Australia.
REGISTRIES and REGISTRARS
Registries: XYZ.COM LLC
Registrars: Crazy Domains FZ-LLC
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: November 14, 2014
Commencement: November 14, 2014
Default Decision Date: December 4, 2014
Response Date: December 4, 2014
Having reviewed the communications records, the Examiner finds that the National Arbitration 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 in a number of countries/regions, such as:
Community 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.
International Trademark registration No. 722971 Lufthansa (word), registered on August 5, 1999, and renewed until August 5, 2019, covering goods and services in Intl Classes 6, 8, 9, 14, 16, 18, 20, 21, 24, 25, 26, 28, and valid in Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Belarus, Switzerland, China, Algeria, Egypt, Croatia, Kenya, Kyrgyzstan, Democratic People's Republic of Korea, Kazakhstan, Liechtenstein, Liberia, Lesotho, Morocco, Monaco, Republic of Moldova, The former Yugoslav Republic of Macedonia, Mongolia, Mozambique, Russian Federation, Sudan, Sierra Leone, San Marino, Swaziland, Tajikistan, Ukraine, Uzbekistan, Viet Nam, Serbia and Montenegro, Georgia, Iceland, Norway, Turkey, Cuba.
The Complainant has provided evidence of use by screenshots from the website www.lufthansa.com.
The Respondent informs that Respondent is managing domain names on behalf of clients and has been given the authority to act on behalf for any issues pertaining to clients' domain names.
Legal Findings and Conclusion:
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 has met the standard sets out in 1.2.6.1. of the URS Procedure since the Complainant has proved its right to the valid Community Trademark registration No. 001212539 LUFTHANSA (word), the valid International Trademark registration No. 722971 Lufthansa (word), as well as other valid trademark registrations. 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 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 and in this case does nothing to distinguish the disputed domain name from the Complainant’s trademark.
The Examiner concludes that the disputed domain name is identical to the Complainant's trademark LUFTHANSA.
NO RIGHTS OR LEGITIMATE INTERESTS
The Respondent does not have any rights in <lufthansa.xyz>, as the Complainant has not authorized the Respondent to register a domain name containing its registered and used trademark LUFTHANSA, nor is the Respondent commonly known by <lufthansa.xyz>.
The question remains whether the Complainant has shown that the Respondent has no legitimate interests in the disputed domain name.
Here, the Respondent informs that <lufthansa.xyz> was registered because the Respondent’s client likes the domain name, and intends to use it for a food review site in Southeast Asia.
As LUFTHANSA is a distinctive and well known trademark, the Examiner is not convinced by the information that <lufthansa.xyz> was registered to be used in connection with food reviews, without any connection to the Complainant’s trademark. The Examiner therefore also draws the conclusion that the Complainant has shown that the Respondent cannot have any legitimate interests in registering and using <lufthansa.xyz>.
To summarize, the Examiner find that the Complainant has established that the Respondent has no rights or legitimate interests in <lufthansa.xyz>.
BAD FAITH REGISTRATION AND USE
The 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 web site called “Internal Server Error”, with an e-mail
contact to the “server administrator”, asking the user to “inform them of the time
the error occurred, and anything you might have done that may have caused the
error”.
The Respondent states that <lufthansa.xyz> is not in use at the moment, and indicates that the “Internal Server Error” could be a server error by the registrar.
The Examiner notes that this “use” is in fact what obviously comes up on the screen, when searching for the disputed domain name. This may not be considered as traditional active use, however it is still the information an Internet surfer get when clicking on the address for <lufthansa.xyz>, presumably looking for information on the Complainant rather than any kind of food reviews.
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.xyz> in bad faith.
After reviewing the parties’ 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.
<lufthansa.xyz>
Petter Rindforth, Examiner
Dated: December 08, 2014
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