Deutsche Lufthansa AG v. Rachit Madan
Claim Number: FA1805001788901
Complainant is Deutsche Lufthansa AG (“Complainant”), represented by Hajo Rauschhofer of Rauschhofer Rechtsanwälte, Germany. Respondent is Rachit Madan (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ɩufthansa.com> (<xn--ufthansa-0ud.com>) (the “Domain Name”), registered with GoDaddy.com, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Complainant submitted a Complaint to the Forum electronically on May 29, 2018; the Forum received payment on May 29, 2018.
On May 29, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <ɩufthansa.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 May 30, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 19, 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--ufthansa-0ud.com. Also on May 30, 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 June 20, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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.
A. Complainant
Complainant’s contentions can be summarised as follows:
Complainant owns the trade mark LUFTHANSA, inter alia, registered in Germany since 1979.
The Domain Name is a Punycode translation of Complainant’s mark. Such a change is not sufficient to distinguish the Domain Name from Complainant’s mark and the Domain Name is confusingly similar to Complainant’s mark.
Complainant has not authorised Complainant to use the Domain Name. The Domain Name has been used for a fake lottery with Complainant’s logo to phish for customers information and to redirect to the web site of a competitor. Respondent used a similar fake lottery in another UDRP case.
Pointing a domain name to a fake lottery page or to the website of a competitor is not a bona fide offering of goods and services and a legitimate non commercial fair use. The use of Complainant’s logo shows Respondent is aware of Complainant and its business. It is disruptive and confusing constituting passing off and is registration and use in bad faith.
Phishing is bad faith per se.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the trade mark LUFTHANSA, inter alia, registered in Germany since 1979 for, inter alia, travel services.
The Domain Name registered in 2018 has been used for a fake lottery which uses Complainant’s logo to obtain information and has also been used to redirect to a site competing with 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.”).
Preliminary Issue: Internationalized Domain Name/Characters
The domain name in dispute, <ɩufthansa.com>, is an internationalized domain name (“IDN”) with the PUNYCODE translation of <xn--ufthansa-0ud.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 <ɩufthansa.com> properly in the <xn--ufthansa-0ud.com> domain name, it first had to encode it into the <ɩufthansa.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). The Panel holds that analyzing the <ɩufthansa.com> domain name rather then its PUNYCODE translation, <xn--ufthansa-0ud.com>, is appropriate for the purposes of this proceeding.
Identical or Confusingly Similar
The Domain Name consists of a typosquatted version of Complainant's LUFTHANSA mark (which is registered in Germany since 1979 for services) and the gTLD .com. The Panel agrees that misspellings such as substitution of a letter with a non-Latin Unicode character does not distinguish the Domain Name from Complainant's LUFTHANSA trade mark pursuant to the Policy. See Nike Inc and Nike Innovate CV v Michael restl c/o Dynadot, FA 1703001723952 (Forum May 11, 2017).
The gTLD .com does not serve to distinguish the Domain Name from Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the <redhat.org> domain name is identical to the complainant's RED HAT mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to the LUFTHANSA mark in which Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
Complainant has not authorised the use of its mark. Respondent has not answered this Complaint and there is no evidence or reason to suggest Respondent is, in fact. commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
Respondent has used the site attached to the Domain Name to link to third party businesses one using Complainant’s logo for a fake lottery offering tickets and one to point to competing travel services. Respondent’s conduct is confusing and did not make it clear that there was no commercial connection with Complainant. As such it cannot amount to the bona fide offering of goods and services. See Am. Intl Group Inc v Benjamin FA 944242 (Forum May 11, 2007) (finding that the respondent's use of a confusingly similar domain name to point to real estate services which competed with the complainant's business did not constitute a bona fide use of goods and services.)
As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Domain Name seeks to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the complainant’s mark and be taken to the respondent’s site is registration and use in bad faith).
Further, phishing can be evidence of bad faith registration and use within Policy ¶ 4(a)(iii) See Klabzuba Oil & Gas, Inc v LAKHPAT SINGH BHANDARI, FA 1506001625750 (Forum July 17, 2015)
In the opinion of the panelist the use made of the Domain Name in relation to competing sites is confusing and disruptive in that visitors to the sites might reasonably believe they are connected to or approved by Complainant as one presents a fake lottery for tickets under a Domain Name confusingly similar to Complainant’s LUFTHANSA mark and using Complainant’s logo. The use of Complainant's logo shows that Respondent was aware of Complainant and its business. The other offers competing travel services without explanation. Accordingly, the Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site likely to disrupt the business of Complainant. See Asbury Auto Group Inc v Tex. Int'l Prop Assocs FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to point to competing dealerships not connected with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of those third party businesses and was therefore evidence of bad faith and use).
As such, the Panelist believes that Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under 4(b)(iii) and (iv) and there is no need to consider further grounds of bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ɩufthansa.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: June 22, 2018
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