URS DEFAULT DETERMINATION
Deutsche Lufthansa AG v. RIDVAN KUPOGLU
Claim Number: FA1606001680098
DOMAIN NAME
<lufthansa.ist>
PARTIES
| Complainant: Deutsche Lufthansa AG of Frankfurt, Germany | |
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Complainant Representative: Rauschhofer Rechtsanwälte
Hajo Rauschhofer of Wiesbaden, Germany
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| Respondent: RIDVAN KUPOGLU RIDVAN KUPOGLU of Istanbul, II, TR | |
REGISTRIES and REGISTRARS
| Registries: Istanbul Metropolitan Municipality | |
| Registrars: IHS Telekom, Inc. |
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. | |
| Saravanan Dhandapani, as Examiner |
PROCEDURAL HISTORY
| Complainant Submitted: June 20, 2016 | |
| Commencement: June 20, 2016 | |
| Default Date: July 6, 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"). |
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
| Procedural Findings: | ||
| Multiple Complainants: Multiple Complainants: No multiple Complainants are involved in this proceeding. This Complaint and findings relate to the domain name <lufthansa.ist>. No domain name is dismissed from this Complaint. | ||
| Multiple Respondents: Multiple Respondents: No multiple Respondents are involved in this proceeding. This Complaint and findings relate to the domain name <lufthansa.ist>. No domain name is dismissed from this Complaint. | ||
| Findings of Fact: The case of the Complainant is as follows: The Respondent’s domain names lufthansa.ist is identical to the trademark LUFTHANSA. LUFTHANSA is a famous and well-known trademark operating worldwide, being impossible to say that one does not know it (see LUFTHANSA.koeln, NAF16155255; STARALLIANCE.tokyo, FA1408001574053, LUFTHANSA.yokohama, NAF1580504; LUFTHANSAv.Guliev FA1559476; LUFTHANSAv.Niklaes FA1562639; LUFTHANSAv.MBI FA1566236; LUFTHANSAv.Gandiyork, FA1549328). It is clear that someone who uses an identical trademark that evidently belongs to a third party to “build” a domain name where the only difference is the suffix .ist, knows the trademark since it is impossible to coin an identical word by coincidence. The Respondent has no permission, no rights or legitimate interests in respect of the domain names. The Respondent has no identical trademark nor offers related services. The Respondent’s domain names have been registered and are being used in bad faith. It is indicated that 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 (WIPO No. D2006-0700). The Respondent clearly registered the domain name, appropriating the Complainant’s famous trademark, in order to suggest to the Internet user a connection between the Complainant’s products and Respondent’s domain which simply does not exist. This is misleading and supports finding of bad faith registration (WIPO No. D2005-0072). Additionally, Panels have also noted that passive holding or non-use of a domain name is evidence of a lack of legitimate rights in the domain name (NAF FA-097328; NAF FA-96248; NAF FA-1677037). The use of the domain name cannot be considered to constitute a legitimate non-commercial use of the domain name or a use connected with a bona fide offering of goods or services either (WIPO No. D2008-1065 or D2005-1090). The suffix “IST” refers to the international airport ATATÜRK with the international airport code IST of the largest Turkish city Istanbul. Respondent combines the Airline LUFTHANSA with the destination speculating of traffic searching for LUFTHANSA flights to Istanbul, Turkey. Istanbul/IST is daily visited by LUFTHANSA. Furthermore, IST has no meaning in the Turkish language as a Google Translate search proves. Therefore, it should be expected to lead to the virtual representation and website of LUFTHANSA and not to an obviously parking site. It is impossible to imagine how the respondent should use that combination of words, if not pretending to act as an LUFTHANSA-official. LUFTHANSA is a non-generic name. The consensus view of panels is that the domain name needs to be genuinely used and not to trade off third-party rights. The Respondent clearly registered lufthansa.ist to catch the attention of travelers wishing to fly with LUFTHANSA to Istanbul. LUFTHANSA has frequently been the subject of fraud by people pretending acting as LUFTHANSA officials sending fake offers, tickets, bills, advertising and goods etc. Right from holding the domain, Respondent may generate substantial abuse. |
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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: Determined: Finding for Complainant The Complainant has proved by documentary evidences that they are the registered owner of trademark “Lufthansa” under various classifications. As noted, the disputed domain name <lufthansa.ist> composes “lufthansa” and “.ist”. Thus the word “Lufthansa” in disputed domain name is identical to Complainant’s registered trademark “Lufthansa”. The “.ist” in disputed domain name is a generic code top-level domain name (gTLD) suffix. It is non-distinctive and is incapable of differentiating the disputed domain name from the Complainant’s registered trademark. Based on the “Lufthansa” being a registered trademark of the Complainant, the Examiner determines that URS 1.2.6.1(i) covers the domain name at issue in this Complaint. [URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name. Determined: Finding for Complainant The Complainant owns trademark “Lufthansa” under various classifications. The Complainant’s adoption and first use of the registered trademark is for decades together. In such case, the burden lies on the Respondent to prove that he/she has legitimate rights and/or interests in the disputed domain name. The Respondent is in default and has not filed any response. Although, the Complainant is not entitled to relief simply by default of the Respondent to submit a Response, the Examiner can however and does draw evidentiary inferences from the failure of the Respondent to respond. In view of the above, the Complainant has established a prima facie case of lack of rights and legitimate interest. Based on the record, the Respondent does not have rights or legitimate interests in the disputed domain name. Hence, the Examiner determines that URS 1.2.6.2 covers the domain name at issue in this Complaint and that the Respondent has no legitimate right or interest to the domain name.
[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
Determined: Finding for Complainant It is the specific case of the Complainant that the Respondent is not affiliated with Complainant in any manner and never authorized the Respondent to register or use any domain name incorporating “Lufthansa”. The Respondent has not responded in spite of the notice of complaint and notice of default under this URS determination process. It is well established that the registration and use of the disputed domain name must involve malafides where the registration and use of it was continues to be made in full knowledge of the Complainant’s prior rights in the “Lufthansa” registered trademark and in circumstances where the registrant did not seek permission from the Complainant, as the owner of trademark, for such registration and use. Thus the Panel Examiner comes to irresistible determination that (i) the disputed domain name is identical to the Complainant’s “Lufthansa” trademark; (ii) the Respondent’s name does not correspond to the disputed domain name; (iii) the Respondent was aware of the Complainant and its trademark when it registered the disputed the domain name; (iv) there is no indication of any authorization to use the Complainant’s mark. Hence, it is lawful to conclude that the disputed domain name was registered in bad faith. Thus the Examiner determines that URS 1.2.6.3 (a) and (d) covers the domain name at issue in this Complaint and the domain name was registered and is being used in bad faith. 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:
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:
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Saravanan Dhandapani Examiner
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