Deutsche Lufthansa AG v. N/A et al.
Claim Number: FA1604001671370
Complainant: Deutsche Lufthansa AG, of Frankfurt, Germany.
Complainant Representative: Rauschhofer Rechtsanwälte, of Wiesbaden, Germany.
Respondent: Antoni Przytulski, of Warsaw, Poland.
N/A of Warsaw, PL.
N/A of Warsaw, Warazawa, International, PL.
REGISTRIES and REGISTRARS
Registries: ICM Registry AD LLC; ICM Registry PN LLC
Registrars: PDR Ltd. d/b/a PublicDomainRegistry.com
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.
Jeffrey M. Samuels, as Examiner.
Complainant submitted: April 21, 2016
Commencement: April 21, 2016
Response Date: May 3, 2016
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").
Complainant requests that the domain name be suspended for the life of the registration.
Clear and convincing evidence.
Complainant Deutsche Lufthansa AG (Lufthansa) is the operator of air flights throughout the world under the LUFTHANSA trademark.
The disputed domain names are lufthansa.adult and lufthansa.porn.
Complainant contends that the disputed domain names are identical or confusingly similar to the LUFTHANSA trademark. Complainant further argues that Respondent has no permission and no rights or legitimate interests with respect to the domain names. “The use of the domain name for a pornographic website cannot be considered to constitute a legitimate noncommercial use of the domain name or a use connected with a bona fide offering of goods or services either,” Complainant declares. Complainant also refers to panel decisions holding that passive holding or non-use of a domain name is evidence of a lack of legitimate rights in a domain name.
With respect to the issue of “bad faith” registration and use, Complainant asserts that Respondent, by using the disputed domain names, has intentionally attempted to attract, for commercial gain, Internet users to its websites by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of such sites. According to Complainant, “[t]he Respondent clearly registered the domain names, appropriating the Complainant’s famous trademark, in order to suggest to the Internet user a connection between the Complainant’s products and Respondent’s domains, which simply does not exist. This is misleading and supports a finding of bad faith registration.” Lufthansa emphasizes that the domains in issue, which feature adult content, “can only be seen as extremely damaging to the commercial interests of LUFTHANSA which is entitled to disavow any association with such websites.”
Complainant further indicates that Respondent holds 36 domains indicating intentional domainselling/hijacking.
Respondent, in his Response, contends that the domains in issue were bought on the open market, are not being used as a trademark, were not bought and are not being used in bad faith, no website is hosted under the disputed domain names, and there is no likelihood of confusion with Complainant’s LUFTHANSA mark. Respondent asserts that the complaint was brought in an abuse of the URS process or contains material falsehoods.
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.
The Examiner concludes that the disputed domain names are confusingly similar to the LUFTHANSA trademark. Each of the disputed domain names incorporates in full the LUFTHANSA mark. The addition of the generic top-level domains “.adult” and “.porn” does not defeat a finding of confusing similarity. The evidence further establishes that Complainant has a valid regional registration for the LUFTHANSA mark (see CTM No. 001212539) and that such mark is in current use.
The Examiner further finds that Respondent has no rights or legitimate interests in the disputed domain names. There is no evidence that Respondent offers any services under the disputed domain names, is commonly known by the domain names, or is making any noncommercial or fair use of the domain names.
Contrary to Respondent’s assertion, the evidence supports a determination of bad faith registration and use. It appears, based on the Examiner’s review of the websites in issue, that Respondent is guilty of passing holding of the disputed domain names, a fact which has been found by multiple ICANN panels to support a finding of bad faith. The evidence also indicates that Respondent holds 36 domain names. Complainant further contends, and Respondent does not dispute, that the LUFTHANSA mark is a famous and well-known trademark. Thus, one may assume that Respondent was aware of such mark at the time he registered the disputed domain names and, in registering such names, was attempting to ride on the coattails of Complainant’s mark. The fact that both parties are located in Germany reinforces the validity of such assumption.
After reviewing the parties’ submissions, the Examiner determines that
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.adult
lufthansa.porn
Jeffrey M. Samuels, Examiner
Dated: May 05, 2016
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