Deutsche Lufthansa AG v. Rachit Madan
Claim Number: FA1710001752950
Complainant is Deutsche Lufthansa AG (“Complainant”), represented by Hajo Rauschhofer of Rauschhofer Rechtsanwälte, Germany. Respondent is Rachit Madan (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lufthansa-air.us>, registered with NameCheap, Inc.
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 Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 10, 2017; the Forum received payment on October 10, 2017.
On October 10, 2017, NameCheap, Inc. confirmed by e-mail to the Forum that the <lufthansa-air.us> 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 the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On October 12, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 1, 2017 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 email@example.com. Also on October 12, 2017, 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 November 3, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD 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.
1. Respondent’s <lufthansa-air.us> domain name is confusingly similar to Complainant’s LUFTHANSA mark.
2. Respondent does not have any rights or legitimate interests in the <lufthansa-air.us> domain name.
3. Respondent registered and uses the <lufthansa-air.us> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, a large, well-known airline, holds a registration for its LUFTHANSA mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,871,600, registered Jan. 3, 1995), as well as many other registration offices around the world.
Respondent registered the <lufthansa-air.us> domain name on September 30, 2017, and uses it to attract Internet users to participate in an illegitimate lottery for tickets on Complainant’s airline.
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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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.”).
The Panel finds that Complainant has established rights in the LUFTHANSA mark through its registration of the mark with the USPTO. See State Farm Mutual Automobile Insurance Company v. Henry Francis, FA 1738716 (Forum July 28, 2017) (acknowledging complainant’s rights in a mark when it had registered the mark with the United States Patent and Trademark Office and the Canadian Intellectual Property Office).
Respondent’s <lufthansa-air.us> domain name is confusingly similar to Complainant’s mark as it contains Complainant’s mark in its entirety and adds a hyphen, the generic term “air,” and the ccTLD “.us.” 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, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.); see also Allied Bldg. Prods. Corp. v. Henkel, FA 827652 (Forum Dec. 11, 2006) (holding that “it is well established that the top-level domain, here “.us,” is insignificant with regard to UDRP analysis” when determining confusing similarity). The Panel thus finds that the <lufthansa-air.us> domain name is confusingly similar to the LUFTHANSA mark.
The Panel finds that Complainant has satisfied Policy ¶4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant contends that Respondent has no rights or legitimate interests in the <lufthansa-air.us> 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 “Rachit Madan” as the registrant. Complainant asserts that there is no evidence that Respondent is commonly known by the disputed domain name. Respondent is not affiliated with Complainant, and has no permission to use the disputed domain name. Accordingly, the Panel finds that Respondent is not commonly known by the <lufthansa-air.us> domain name under Policy ¶ 4(c)(ii). 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).
Further, Complainant claims Respondent uses the LUFTHANSA mark in its <lufthansa-air.us> domain name to offer counterfeit products. Complainant alleges that Respondent’s webpage allows users to participate in a lottery to win tickets for Complainant’s products and services. The unauthorized distribution of a complainant’s product, whether real or counterfeit, can evince a lack of a bona fide offering of goods or service or a legitimate noncommercial or fair use. See Wolverine World Wide, Inc. v. Fergus Knox, FA 1627751 (Forum August 19, 2015) (finding no bona fide offering of goods or services, or legitimate noncommercial or fair use existed where Respondent used the resolving website to sell products branded with Complainant’s MERRELL mark, and were either counterfeit products or legitimate products of Complainant being resold without authorization). The Panel finds that Respondent fails to make a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) of the domain name.
Complainant contends that Respondent’s use of the <lufthansa-air.us> domain name resolves to phish for their personal information is further evidence of the lack of a bona fide offering of goods or services or a legitimate noncommercial or fair use. The Panel agrees with finds that Respondent’s attempts to fraudulently obtain personal information does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii). See Nordstrom, Inc. v. Above.com Domain Privacy, FA 1654490 (Forum February 1, 2016) (finding respondent failed under Policy ¶¶ 4(c)(i) and (iii) as it phished for internet users’ personal information via a fake survey).
The Panel finds that Complainant has satisfied Policy ¶4(a)(ii).
Complainant argues that Respondent registered and uses the <lufthansa-air.us> domain name in bad faith by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the disputed domain name for commercial gain. Using a disputed domain name that trades upon the goodwill of a complainant for commercial gain can evince bad faith under Policy ¶ 4(b)(iv). See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). Accordingly, the Panel finds that Respondent attempted to commercially benefit off Complainant’s mark in bad faith under Policy ¶ 4(b)(iv).
Respondent uses the <lufthansa-air.us> domain name to engage in a phishing scheme to obtain Internet users’ personal information. The Panel finds that this use constitutes bad faith under Policy ¶ 4(a)(iii). See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”).
Complainant contends that Respondent must have had actual knowledge of the LUFTHANSA mark as Respondent creates confusion as to Complainant’s connection with the website by selling counterfeit products, and the domain name includes Complainant’s mark in its entirety. The Panel agrees and finds that this further demonstrates 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).
The Panel finds that Complainant has satisfied Policy ¶4(a)(iii).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lufthansa-air.us> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: November 5, 2017
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