URS DEFAULT DETERMINATION


Deutsche Lufthansa AG v. Tim Petrac
Claim Number: FA1504001615525


DOMAIN NAME

<lufthansa.koeln>


PARTIES


   Complainant: Deutsche Lufthansa AG of Frankfurt, Germany
  
Complainant Representative: Rauschhofer Rechtsanwälte Nadim Kashlan of Wiesbaden, Germany

   Respondent: Tim Petrac of Köln, II, Germany
  

REGISTRIES and REGISTRARS


   Registries: NetCologne Gesellschaft für Telekommunikation mbH
   Registrars: 1&1 Internet AG

EXAMINER


   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 Examiner in this proceeding.
   Antonina Pakharenko-Anderson, as Examiner

PROCEDURAL HISTORY


   Complainant Submitted: April 21, 2015
   Commencement: April 22, 2015
   Default Date: May 7, 2015
   Having reviewed the communications records, the Examiner finds that the 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").

RELIEF SOUGHT


   Complainant requests that the domain name be suspended for the life of the registration.

STANDARD OF REVIEW


   Clear and convincing evidence.

FINDINGS and DISCUSSION



   Findings of Fact: Under URS 9.1. the evidences will be the materials submitted with the Complaint and the Response, and those materials will serve as the entire records used by the Examiner to make a Determination. URS 8.2. reads that the burden of proof shall be clear an convincing evidences. Under URS 8.6. if the Examiner finds that all three standards provided for by URS 8.1. are satisfied by clear and convincing evidences and that there is no genuine contestable issue, then the Examiner shall issue a Determination in favour of the Complainant. Under URS 6.1. if at the expiration of the 14 Calendar Day Response period (or extended period if granted), the Registrant does not submit an answer, the Complaint proceeds to Default. Further URS 6.3. reads that all Default cases proceed to Examination for review on the merits of the claim. LUFTHANSA is a famous and well-known trademark operating worldwide. The Complainant holds the valid trademark registration for the LUFTHANSA (CTM 001212539) and the brand is in use. The Complainant contends that that the Respondent has never been granted the permission for the use of the mark by the trademark holder. The Respondent has not duly served the Response, but according to the e-mail of the Respondent’s ISP on April 22, 2015 the domain owner has placed the order to delete the domain <lufthansa.koeln> immediately. However, the Respondent has offered no explanation as to why the domain name <lufthansa.koeln > was chosen. Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.

  

Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.


[URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly similar to a word mark:
  (i) for which the Complainant holds a valid national or regional registration and that is in current use; or
  (ii) that has been validated through court proceedings; or
  (iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed.

Determined: Finding for Complainant 


The registered domain name <lufthansa.koeln> fully incorporates the word mark LUFTHANSA for which the Complainant holds a valid regional registration and that is in current use. In addition, it is well accepted that the top level domain is irrelevant in assessing identity or confusing similarity, thus “.koeln” is of no consequence here. Respectively, the Examiner finds that the domain name <lufthansa.koeln> is identical to the Complainant’s LUFTHANSA mark under URS 1.2.6.1. (i).


[URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name.

Determined: Finding for Complainant 


The Examiner determines that the Respondent is not commonly known by the LUFTHANSA name and he has no connection or affiliation with the Complainant and has not received any license or consent, express or implied, to use Complainant’s LUFTHANSA mark in a domain name or otherwise. The domain name is neither generic nor descriptive. The Respondent is using the domain name to redirect to the external website which he operates and at which his services are promoted. Such use which diverts Internet users who are looking for the Complainant’s products / services on the Internet to the external website is not a legitimate, bona fide use and does not confer legitimate interests in the domain name <lufthansa. koeln>. The Examiner also notes that such redirection cannot support noncommercial or fair use of the domain name either. Thus, the Respondent lacks rights or legitimate interests in the domain name <lufthansa.koeln> under URS 1.2.6.2.


[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
  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.

Determined: Finding for Complainant 


The bad faith exists where the respondent, by using the domain name, has intentionally attempted to attract, for commercial gain, Internet users to its website 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 its website or location or of a product or service on its website or location. The domain is connected with the LUFTHANSA combined with the suffix ”koeln”. The name “koeln” refers to a well known German city Cologne, where a major branch office of Lufthansa is located. Thus, it may be anticipated that, by visiting the site, Internet user will most likely expect to reach the LUFTHANSA website or the website operated by someone who has any ties with or relation to the LUFTHANSA, but not to be redirected to external website operated by a person who has no affiliation ties with the Complainant and has never been licensed to use the mark of the Complainant. The Respondent who has never been granted the right to use the LUFTHANSA mark and who does not have any affiliation ties with the Complainant is using the confusion in the minds of consumers over the use of the well-known LUFTHANSA mark to divert users to the own external website at which his services are promoted, that cannot support the finding of the good faith. Thus, the Examiner finds the domain name <lufthansa.koeln> which is used to deceive Internet users into viewing the external website of a non-related operator to be misleading that supports finding of bad faith registration under URS 1.2.6.3.(d).


FINDING OF ABUSE or MATERIAL FALSEHOOD


The Examiner may find that the Complaint was brought in an abuse of this proceeding or that it contained material falsehoods.

The Examiner finds as follows:


  1. The Complaint was neither abusive nor contained material falsehoods. 

DETERMINATION


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 name(s) be SUSPENDED for the duration of the registration:

  1. lufthansa.koeln

 

Antonina Pakharenko-Anderson
Examiner
Dated: May 8, 2015

 

 

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