DECISION

 

Deutsche Lufthansa AG v. Domain Admin / Whois Privacy Corp.

Claim Number: FA1802001772547

 

PARTIES

Complainant is Deutsche Lufthansa AG (“Complainant”), represented by Hajo Rauschhofer of Rechtsanwalt / Attorney at Law, Germany.  Respondent is Domain Admin / Whois Privacy Corp. (“Respondent”), Bahamas.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <xn--lufthasa-n99c.com>, registered with Internet Domain Service BS Corp.

 

PANEL

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.

 

John J. Upchurch as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on February 20, 2018; the Forum received payment on February 20, 2018.

 

On February 21, 2018, Internet Domain Service BS Corp confirmed by e-mail to the Forum that the <xn--lufthasa-n99c.com> domain name is registered with Internet Domain Service BS Corp and that Respondent is the current registrant of the name.  Internet Domain Service BS Corp has verified that Respondent is bound by the Internet Domain Service BS Corp 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 February 23, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 15, 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 postmaster@xn--lufthasa-n99c.com.  Also on February 23, 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 March 20, 2018, 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 name be transferred from Respondent to Complainant.

 

Preliminary Issue:  Internationalized Domain Name

 

The domain name in dispute, <lufthaṇsa.com>, is an internationalized domain name (“IDN”) with the PUNYCODE translation of <xn--lufthasa-n99c.com>.  An IDN is a domain name that contains non-traditional characters, such as letters with diacritics or other non-ASCII characters.  In order to display characters or symbols in a domain name, the terms of the domain name are encoded into a scheme such as PUNYCODE.  For Complainant to display the “ṇ” character properly in the <lufthaṇsa.com> domain name, it first had to encode it into the <xn--lufthasa-n99c.com> domain name.

 

In the past, panels have found IDNs and their PUNYCODE translations to be equivalent.  See Damien Persohn v. Lim, FA 874447 (Forum Feb. 19, 2007) (finding an internationalized domain name, <têtu.com>, and its PUNYCODE translation, <xn--ttu-fma.com>, to be one and the same under the Policy); see also Württembergische Versicherung AG v. Emir Ulu, D2006-0278 (WIPO May 4, 2006) (finding that the <xn--wrttembergische-versicherung-16c.com> should be considered as equivalent to the <württembergische-versicherung.com> domain name, based on previous panel decisions recognizing the relevance of I-nav software for translating German letters such as “ä” or “ü” into codes such as <xn--[name]-16c> and similar); see also Fujitsu Ltd. v. tete and Lianqiu Li, D2006-0885 (WIPO Oct. 12, 2006) (finding the <xn--zqsv0e014e.com> domain name to be an exact reproduction of the complainant’s Chinese trademark in a domain name).  This Panel finds that the Lufthasa.com domain name is the same as its PUNYCODE translation, <xn--lufthasa-n99c.com>, for purposes of this proceeding.

 

PARTIES' CONTENTIONS

A.   Complainant:

1.    Complainant has rights in the LUFTHANSA mark through its registration of the mark with the German Patent and Trademark Office (“GPTMO”) (e.g. Reg. No. 990,834, registered Sep. 25, 1979). See Compl. Annex 10. Respondent’s <lufthaṇsa.com> domain name is confusingly similar to Complainant’s mark as it includes the trademark in its entirety and merely adds a dot below the letter “n.”

2.    Respondent has no rights or legitimate interests in the <lufthaṇsa.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the domain name in connection with a phishing scheme, where Respondent purports to provide a lottery for flight tickets to acquire personal information from users who attempt to participate in the lottery. See Compl. Annex 14. Relatedly, to the extent that Respondent does offer products and services with the <lufthaṇsa.com> domain name, those products and services are counterfeit versions of Complainants.

3.    Respondent registered and uses the <lufthaṇsa.com> domain name in bad faith. Respondent disrupts Complainant’s business by redirecting users seeking Complainant and offers counterfeit products in attempts to phish for information, presumably for Respondent’s commercial gain. See Compl. Annex 13.  Finally, Respondent clearly had actual knowledge of Complainant’s rights in the LUFTHANSA mark when it registered the domain name based on the use of the mark on the website and the worldwide fame associated with the mark.

 

B.   Respondent:

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

 

FINDINGS

1.    Respondent’s <xn--lufthasa-n99c.com> domain name is confusingly similar to Complainant’s LUFTHANSA mark.

2.    Respondent does not have any rights or legitimate interests in the <xn--lufthasa-n99c.com> domain name.

3.    Respondent registered or used the <xn--lufthasa-n99c.com> domain name 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 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.”).

 

Identical and/or Confusingly Similar

Complainant claims rights in the LUFTHANSA mark through its registration of the mark with the German Patent and Trademark Office (“GPTMO”) (e.g. Reg. No. 990,834, registered Sep. 25, 1979). See Compl. Annex 10. Registration of a mark with a trademark authority such as the GPTMO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See teamtechnik Maschinen und Anlagen GmbH v. Edgar Bechtle / Ebechtle LLC, FA 1652306 (Forum Jan. 28, 2016) (finding rights in the TEAMTECHNIK mark pursuant to Complainant’s trademark registration with GPTMO). Accordingly, the Panel finds that Complainant has established rights in the LUFTHANSA mark for the purposes of Policy ¶ 4(a)(i).

 

Complainant next argues that Respondent’s <lufthaṇsa.com> domain name is confusingly similar to Complainant’s mark as it includes the trademark in its entirety and merely adds a dot below the letter “n.” The Panel also notes that the domain name adds the generic top-level domain (“gTLD”) “.com.” Similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶4(a)(i). See NIKE, Inc. and Nike Innovate, C.V. v. michal restl  c/o Dynadot, FA1703001723952 (Forum May 11, 2017) (finding <nıke.com> [xn--nke-jua.com] confusingly similar to NIKE and noting, “Panels have determined that exchanging a letter in a mark for a Unicode character fails to distinguish a domain name for the purposes of a Policy ¶ 4(a)(i) analysis of confusing similarity”); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). The Panel therefore finds that the infringing domain name is confusingly similar to the LUFTHANSA mark under 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 that Respondent has no rights or legitimate interests in the <lufthaṇsa.com> 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 “Domain Admin / Whois Privacy Corp” as the registrant.  See Compl. Annex 13. Complainant asserts that no evidence exists to show that Respondent has ever been legitimately known by the LUFTHANSA mark. Panels may use these assertions as evidence of lacking rights or legitimate interests. 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). Complainant alleges that Respondent has never been legitimately affiliated with Complainant, has never been known by the domain name prior to its registration, and Complainant has not given Respondent permission to use the mark in any manner. Accordingly, the Panel agrees that Respondent is not commonly known by the <lufthaṇsa.com> domain name under Policy ¶ 4(c)(ii).

 

Next, Complainant contends that Respondent uses the domain name in connection with a phishing scheme, where Respondent purports to provide a lottery for flight tickets to acquire personal information from users who attempt to participate in the lottery. Using a confusingly similar domain name to participate in a phishing scheme can evince a lack of a bona fide offering of goods or services or a legitimate noncommercial or fair use. 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). Complainant provides a screenshot of the alleged survey phishing scheme, where it shows that Respondent purports to offer plane tickets to answer various questions. See Compl. Annex 13. As such, the Panel finds that Respondent phishes for consumer information, failing to confer rights and legitimate interests in the domain name per Policy ¶¶ 4(c)(i) and/or (iii).

 

Relatedly, Complainant claims that to the extent that Respondent does offer products and services with the <lufthaṇsa.com> domain name, those products and services are counterfeit versions of Complainants. The unauthorized distribution of a complainant’s products, whether real or counterfeit, can evince a failure to make 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). As noted in the previous paragraph, Complainant’s screenshots show that Respondent purports to offer tickets to consumers under Complainant’s marks and designs. See Compl. Annex 13. Accordingly, the Panel agrees that Respondent purports to offer products under Complainant’s mark, failing to use the domain name in connection with 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).

 

Registration and Use in Bad Faith

Complainant argues that Respondent registered and uses the <lufthaṇsa.com> domain name in bad faith to disrupt Complainant’s business by redirecting users seeking Complainant and offering counterfeit products in attempts to phish for information, presumably for Respondent’s commercial gain. 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 Xiaomi Inc. v. Tanapong Kotipan / Omega Gadget, FA1505001621199 (Forum July 10, 2015) (“Use of a domain name to offer counterfeit goods does consist of bad faith under Policy ¶ 4(b)(iii).”); see also Affliction, Inc. v. Chinasupply, FA 1223521 (Forum Oct. 23, 2008) (finding that the respondent attempts to commercially gain and thus demonstrating bad faith per Policy ¶ 4(b)(iv) by creating confusion as to the complainant’s connection with the website by selling counterfeit products); see also Weight Watchers International, Inc. v. Private Registration / WhoisGuardService.com, FA1412001596215 (Forum Jan. 15, 2015) (“This Panel similarly finds that Respondent has acted in Policy ¶ 4(b)(iv) bad faith here based on use of the domain name for surveys.”). Complainant’s provided screenshots shows that Respondent uses Complainant’s mark and design on the resolving domain in connection with a survey to win free tickets. See Compl. Annex 13. Complainant alleges that, to the extent Respondent does actually distribute goods under the domain name, the goods are counterfeit versions of Complainant’s products. Accordingly, the Panel agrees 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, Complainant claims that Respondent had actual knowledge of Complainant’s rights in the LUFTHANSA mark at the time of registering the <lufthaṇsa.com> 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). Complainant contends that Respondent clearly had actual knowledge of Complainant’s rights in the LUFTHANSA mark when it registered the domain name based on the use of the mark on the website and the worldwide fame associated with the mark. The Panel agrees with Complainant and find that Respondent did have actual knowledge of Complainant’s mark, demonstrating 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 <xn--lufthasa-n99c.com> domain name be TRANSFERRED from Respondent to Complainant.

 

John J. Upchurch, Panelist

April 2, 2018