DECISION

 

Deutsche Lufthansa AG v. Ballu Balwant

Claim Number: FA2103001939283

 

PARTIES

Complainant is Deutsche Lufthansa AG (“Complainant”), represented by Hajo Rauschhofer of Specialist Solicitor for Information Technology Law, Germany.  Respondent is Ballu Balwant (“Respondent”), India.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <lufthasaairlinesreservations.com>, <lufthasaairlinescontactnumber.com>, <lufthansaairlinestollfree.com>, <lufthansaairlinescancellations.com>, <lufthasaairlinesphonenumbers.com>, <lufthasaairlinesnumbers.com>, <lufthasaairlinesdatechange.com>, <lufthansaairlinescustomerservice.com>, and <lufthansaairlinescustomercares.com>, registered with Namecheap, Inc..

 

PANEL

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.

 

John J. Upchurch as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on March 29, 2021; the Forum received payment on March 29, 2021.

 

On March 31, 2021, Namecheap, Inc. confirmed by e-mail to the Forum that the <lufthasaairlinesreservations.com>, <lufthasaairlinescontactnumber.com>, <lufthansaairlinestollfree.com>, <lufthansaairlinescancellations.com>, <lufthasaairlinesphonenumbers.com>, <lufthasaairlinesnumbers.com>, <lufthasaairlinesdatechange.com>, <lufthansaairlinescustomerservice.com>, and <lufthansaairlinescustomercares.com> domain names are registered with Namecheap, Inc. and that Respondent is the current registrant of the names.  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 April 1, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 21, 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@lufthasaairlinesreservations.com, postmaster@lufthasaairlinescontactnumber.com, postmaster@lufthansaairlinestollfree.com, postmaster@lufthansaairlinescancellations.com, postmaster@lufthasaairlinesphonenumbers.com, postmaster@lufthasaairlinesnumbers.com, postmaster@lufthasaairlinesdatechange.com, postmaster@lufthansaairlinescustomerservice.com, postmaster@lufthansaairlinescustomercares.com.  Also on April 1, 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 April 26, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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.

 

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.   Complainant

1.    Complainant is a well-known and famous company that deals with luxury goods, insurance, and more. Complainant has rights in the LUFTHANSA  mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,994,296 registered August 20, 1996). Respondent’s lufthansaairlinestollfree.com>, <lufthansaairlinescancellations.com>,  <lufthansaairlinescustomerservice.com>, and  <lufthansaairlinescustomercares.com>  domain names are virtually identical and confusingly similar to Complainant’s mark because they incorporate the LUFTHANSA  mark in its entirety and merely add the terms “airlinestollfree,” “airlinescancellations,” “airlinescustomerservice,” “airlinescustomercares” respectively, and adds the “.com” generic top-level domain (“gTLD”) Additionally, Respondent’s <lufthasaairlinesreservations.com>, <lufthasaairlinescontactnumber.com>, <lufthasaairlinesphonenumbers.com>, <lufthasaairlinesnumbers.com>,and <lufthasaairlinesdatechange.com> domain names are identical or confusingly similar to Complainant’s LUFTHANSA mark as they contain the LUFTHANSA mark in its entirety and merely delete the letter “n,” add the terms “airlinesreservations,” “airlinescontactnumber,” “airlinesphonenumbers,” “airlinesnumbers,” “airlinesdatechange” respectively, and add the “.com” gTLD.

 

2.    Respondent has no legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names and Complainant has not authorized or licensed Respondent any rights in the LUFTHANSA mark.  Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the disputed domain names are used by Respondent to pass themselves off as Complainant.

 

3.    Respondent registered and uses the disputed domain names in bad faith. Further, Respondent registered the disputed domain name in order to disrupt Complainant’s business and divert customers for commercial gain. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the LUFTHANSA mark.

 

B.   Respondent

1.    Respondent failed to submit a response in this proceeding.

 

FINDINGS

1.    Respondent’s <lufthasaairlinesreservations.com>, <lufthasaairlinescontactnumber.com>, <lufthansaairlinestollfree.com>, <lufthansaairlinescancellations.com>, <lufthasaairlinesphonenumbers.com>, <lufthasaairlinesnumbers.com>, <lufthasaairlinesdatechange.com>, <lufthansaairlinescustomerservice.com>, and <lufthansaairlinescustomercares.com> domain names are confusingly similar to Complainant’s LUFTHANSA mark.

 

2.    Respondent does not have any rights or legitimate interests in the <lufthasaairlinesreservations.com>, <lufthasaairlinescontactnumber.com>, <lufthansaairlinestollfree.com>, <lufthansaairlinescancellations.com>, <lufthasaairlinesphonenumbers.com>, <lufthasaairlinesnumbers.com>, <lufthasaairlinesdatechange.com>, <lufthansaairlinescustomerservice.com>, and <lufthansaairlinescustomercares.com> domain names.

 

3.    Respondent registered or used the <lufthasaairlinesreservations.com>, <lufthasaairlinescontactnumber.com>, <lufthansaairlinestollfree.com>, <lufthansaairlinescancellations.com>, <lufthasaairlinesphonenumbers.com>, <lufthasaairlinesnumbers.com>, <lufthasaairlinesdatechange.com>, <lufthansaairlinescustomerservice.com>, and <lufthansaairlinescustomercares.com> domain names in bad faith.

 

DISCUSSION

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”).

 

Identical and/or Confusingly Similar

Complainant asserts rights in the LUFTHANSA  mark based upon the registration with the USPTO (e.g., Reg. No. 1,994,296 registered August 20, 1996). Registration of a mark with the USPTO is a valid showing of rights in a mark. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Since Complainant provides evidence of registration of the LUFTHANSA mark with the USPTO, the Panel finds that the Complainant has rights in the mark under Policy 4(a)(i).

 

Complainant argues Respondent’s <lufthansaairlinestollfree.com>, <lufthansaairlinescancellations.com>,  <lufthansaairlinescustomerservice.com>, and  <lufthansaairlinescustomercares.com> domain names are identical or confusingly similar to Complainant’s LUFTHANSA mark as they contain the LUFTHANSA mark in its entirety and merely add the terms “airlinestollfree,”

“airlinescancellations,” “airlinescustomerservice,” “airlinescustomercares” respectively, and add the “.com” gTLD. Complainant also argues Respondent’s <lufthasaairlinesreservations.com>, <lufthasaairlinescontactnumber.com>, <lufthasaairlinesphonenumbers.com>, <lufthasaairlinesnumbers.com>,and <lufthasaairlinesdatechange.com> domain names are identical or confusingly similar to Complainant’s LUFTHANSA mark as they contain the LUFTHANSA mark in its entirety and merely delete the letter “n,” add the terms “airlinesreservations,” “airlinescontactnumber,” “airlinesphonenumbers,” “airlinesnumbers,” “airlinesdatechange” respectively, and add the “.com” gTLD. The addition of a generic or descriptive phrase and gTLD fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists 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 Compaq Info. Techs. Group, L.P. v. Seocho, FA 103879 (Forum Feb. 25, 2002) (finding that the domain name <compq.com> is confusingly similar to the complainant’s COMPAQ mark because the omission of the letter “a” in the domain name does not significantly change the overall impression of the mark). Therefore, the Panel finds the disputed domain names are confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).

 

Complainant contends Respondent lacks rights or legitimate interests in the <lufthasaairlinesreservations.com>, <lufthasaairlinescontactnumber.com>, <lufthansaairlinestollfree.com>, <lufthansaairlinescancellations.com>, <lufthasaairlinesphonenumbers.com>, <lufthasaairlinesnumbers.com>, <lufthasaairlinesdatechange.com>, <lufthansaairlinescustomerservice.com>, and <lufthansaairlinescustomercares.com> domain names since Respondent is not commonly known by the disputed domain names and Complainant has not authorized or licensed to Respondent any rights in the LUFTHANSA mark. WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain name lists the registrant as “Ballu Balwant,” and there is no other evidence to suggest that Respondent was authorized to use the LUFTHANSA mark. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).

 

Complainant argues that Respondent fails to use the disputed domain names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent uses the <lufthasaairlinesreservations.com>, <lufthasaairlinescontactnumber.com>, <lufthansaairlinestollfree.com>, <lufthansaairlinescancellations.com>, <lufthasaairlinesphonenumbers.com>, <lufthasaairlinesnumbers.com>, <lufthasaairlinesdatechange.com>, <lufthansaairlinescustomerservice.com>, and <lufthansaairlinescustomercares.com> domain names to pass themselves off as Complainant. Where the respondent uses a disputed domain name to pass themselves off as a complainant, the Panel finds the respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business). Here, Complainant provides screenshots of the disputed domains’ resolving pages. The Panel finds that Respondent fails to use the disputed domain names for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).

 

Registration and Use in Bad Faith

Complainant argues that Respondent registered and Respondent uses the <lufthasaairlinesreservations.com>, <lufthasaairlinescontactnumber.com>, <lufthansaairlinestollfree.com>, <lufthansaairlinescancellations.com>, <lufthasaairlinesphonenumbers.com>, <lufthasaairlinesnumbers.com>, <lufthasaairlinesdatechange.com>, <lufthansaairlinescustomerservice.com>, and <lufthansaairlinescustomercares.com> domain names in bad faith because Respondent disrupts Complainant’s business and attempts to attract Internet users to its competing website for commercial gain. Where the respondent uses a disputed domain name to pass themselves off as a complainant, the Panel finds evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). 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.”) As previously noted, Complainant provides screenshots of the disputed domains’ resolving pages. The Panel agrees and finds that Respondent registered and used the disputed domain name in bad faith per Policy ¶ 4(b)(iii) or (iv).

 

Complainant argues that Respondent had knowledge of Complainant’s rights in the LUFTHANSA mark at the time of registering the disputed domain names. The Panel chooses to determine whether Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name as actual knowledge can adequately demonstrate bad faith under Policy ¶ 4(a)(iii). See AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) (“Complainant contends that Respondent’s knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii).”) see also iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). To support this assertion, Complainant points to its trademark registrations as well as its commercial presence and reputation.  As such, the Panel determines Respondent did have actual knowledge of Complainant’s right in its mark, which would support a finding of bad faith under Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <lufthasaairlinesreservations.com>, <lufthasaairlinescontactnumber.com>, <lufthansaairlinestollfree.com>, <lufthansaairlinescancellations.com>, <lufthasaairlinesphonenumbers.com>, <lufthasaairlinesnumbers.com>, <lufthasaairlinesdatechange.com>, <lufthansaairlinescustomerservice.com>, and <lufthansaairlinescustomercares.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

John J. Upchurch, Panelist

Dated:  May 10, 2021