Deutsche Lufthansa AG v. Hildegard Gruener
Claim Number: FA1803001775078
Complainant is Deutsche Lufthansa AG (“Complainant”), represented by Hajo Rauschhofer of Rauschhofer Rechtsanwälte, Germany. Respondent is Hildegard Gruener (“Respondent”), Austria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lufthansa-com.com>, registered with GoDaddy.com, 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 Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 9, 2018; the Forum received payment on March 9, 2018.
On March 9, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <lufthansa-com.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 March 9, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 29, 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 email@example.com. Also on March 9, 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 April 2, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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.
Complainant states that it uses its LUFTHANSA mark in connection with the transportation of airline passengers and incentive award programs, as well as for a wide range of other goods and services. Complainant has rights in the LUFTHANSA mark through its registration in the United States in 1995. The mark is also registered elsewhere around the world and it is famous.
Complainant alleges that the disputed domain name is identical or confusingly similar to Complainant’s mark as it includes the mark in its entirety and just adds the combination of letters “-com.” Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Complainant has never granted license, permission, or authorization to Respondent to use its mark, thus Respondent is not commonly known by the disputed domain name. Further, Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, Respondent uses the domain name to provide pay-per-click links to various companies, some of which are offer competing transportation services. Additionally, Respondent appears to offer counterfeit products at the website associated with the disputed domain name. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent has registered and used the domain name in bad faith. Per Policy ¶¶ 4(b)(iii) and 4(b)(iv), Respondent’s effort to pass off as Complainant disrupts Complainant’s business, and creates a likelihood of confusion with Complainant’s mark for Respondent’s own commercial gain. Further, per Policy ¶ 4(a)(iii), Respondent has actual knowledge of Complainant’s rights to its mark as the mark is famous, and Respondent uses Complainant’s name, logo, color scheme and other characteristics of Complainant’s website at the resolving webpage associated with the domain name. Complainant cites UDRP precedents to support its position.
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark LUTFHANSA, with rights dating back to 1995. The mark is very well known around the world.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain names to resolve to a website that displays Complainant’s name and logo and offers services that compete with those offered by 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 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 disputed domain name is confusingly similar to Complainant’s LUFTHANSA mark as the domain name incorporates the mark entirely, and adds “-com” after the mark. The Panel notes that the domain name also appends the generic top-level domain (“gTLD”) “.com.” Such changes to a mark in a domain name are insufficient to distinguish said domain name for purposes of Policy ¶ 4(a)(i). See NIKE, Inc., and Nike Innovate, C.V. v. Emile Boulanger, FA 1732459 (Forum June 30, 2017) (“Further, the addition of “com” is particularly unhelpful in creating a distinction between a domain name and a mark.”); see also ADP, LLC. v. Ella Magal, FA 1773958 (Forum Aug. 2, 2017) (“Respondent’s <workforce-now.com> domain name appropriates the dominant portion of Complainant’s ADP WORKFORCE NOW mark and adds a hyphen and the gTLD “.com.” These changes do not sufficiently distinguish the disputed domain name from the ADP WORKFORCE NOW mark.”). Consequently, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed 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 “Hildegard Gruener” as the registrant. Accordingly, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name to resolve to a website that contains pay-per-click links redirecting users to services that compete with Complainant. Using a domain name to display pay-per-click links to competing services fails to confer rights and legitimate interests under Policy ¶¶ 4(c)(i) and (iii). 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); see also Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). Accordingly, 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). Further, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Respondent has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent is using the disputed domain name to disrupt Complainant’s business by creating a likelihood for confusion with Complainant’s mark for Respondent’s own commercial gain by passing off as Complainant and providing competing pay-per-click links. Using a disputed domain name that disrupts a complainant’s business and trades upon the goodwill of a complainant for commercial gain can evince bad faith under Policy ¶¶ 4(b)(iii) & (iv). See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”); see also American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum January 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iv)”). Accordingly, the Panel finds that Respondent disrupts Complainant’s business and attempted to commercially benefit off Complainant’s mark in bad faith under Policy ¶¶ 4(b)(iii) & (iv).
Further, Respondent had actual knowledge of Complainant’s rights in the LUFTHANSA mark at the time of registering the <lufthansa-com.com> domain name. Respondent’s actual knowledge is demonstrated by Respondent’s use of Complainant’s name, logo, color scheme and other characteristics of Complainant’s website at the resolving webpage associated with the domain name. Actual knowledge of a complainant's rights in a mark prior to registering a confusingly similar domain name can evince 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 Respondent’s actual knowledge of Complainant’s mark demonstrates bad faith under 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 <lufthansa-com.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: April 2, 2018
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