Deutsche Lufthansa AG v. Jane Dew
Claim Number: FA1803001775139
Complainant is Deutsche Lufthansa AG (“Complainant”), represented by Hajo Rauschhofer of Rauschhofer Rechtsanwälte, Germany. Respondent is Jane Dew (“Respondent”), Cayman Islands.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lufthansa-flynet.com>, registered with DropCatch.com 1150 LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 9, 2018; the Forum received payment on March 9, 2018.
On March 13, 2018, DropCatch.com 1150 LLC confirmed by e-mail to the Forum that the <lufthansa-flynet.com> domain name is registered with DropCatch.com 1150 LLC and that Respondent is the current registrant of the name. DropCatch.com 1150 LLC has verified that Respondent is bound by the DropCatch.com 1150 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 March 15, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 4, 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@lufthansa-flynet.com. Also on March 15, 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 April 6, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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
1. Complainant, Deutsche Lufthansa AG, is one of the world’s largest commercial airlines. In connection with this business, Complainant uses the LUFTHANSA and FLYNET marks to promote its goods and services. Complainant has rights in the LUFTHANSA and FLYNET marks based upon registration with multiple trademark registrars, including the United States Patent and Trademark Office (“USPTO”) (e.g., LUFTHANSA—Reg. No. 1,994,296, registered Aug. 20, 1996; FLYNET—Reg. No. 3,875,491, registered Nov. 16, 2010).
2. Respondent’s <lufthansa-flynet.com>[i] domain name is confusingly similar to Complainant’s marks as the marks are incorporated entirely before Respondent adds the “-com” internationalized letters.
3. Respondent has no rights or legitimate interests in the <lufthansa-flynet.com> domain name. Respondent is not commonly known by the domain name because Complainant has never granted authorization, license, or permission to Respondent to use its marks.
4. Respondent does not use the domain name in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, Respondent’s domain name redirects visitors to a website unconnected with Complainant.
5. Respondent’s registration and use of the domain name is in bad faith as Respondent disrupts Complainant’s business by diverting consumers away from Complainant’s website. Respondent’s bad faith is further demonstrated by causing confusion with Complainant’s trademarks for commercial gain. Additionally, Respondent is passively holding the domain name. Lastly, Respondent had actual knowledge of Complainant’s rights to its marks when Respondent registered the <lufthansa-flynet.com> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the LUFTHANSA and FLYNET marks. Respondent’s domain name is confusingly similar to Complainant’s LUFTHANSA and FLYNET marks. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <lufthansa-flynet.com> domain name and that Respondent registered and uses the domain name in bad faith.
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.”).
Complainant has rights in the LUFTHANSA and FLYNET marks based upon registration with multiple trademark registrars, including the USPTO (e.g., LUFTHANSA—Reg. No. 1,994,296, registered Aug. 20, 1996; FLYNET—Reg. No. 3,875,491, registered Nov. 16, 2010). Registrations of a mark with multiple trademark registrars are sufficient to demonstrate rights to a mark pursuant to Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”); see also Alibaba Group Holding Limited v. YINGFENG WANG, FA 1568531 (Forum Aug. 21, 2014) (“Complainant has rights in the ALIBABA mark under the Policy through registration with trademark authorities in numerous countries around the world.”). Accordingly, the Panel finds Complainant’s registrations demonstrate rights to its marks per Policy ¶ 4(a)(i).
Next, Complainant argues Respondent’s <lufthansa-flynet.com> domain name is confusingly similar to its LUFTHANSA and FLYNET marks as the marks are incorporated entirely before Respondent adds the “-com” gTLD. Similar changes to a mark have been found insufficient to defeat a test for confusing similarity pursuant to Policy ¶ 4(a)(i). See Wyndham Hotels and Resorts, LLC, and Wyndham Vacation Resorts, Inc. v. James VanBuren, FA 1624028 (Forum July 10, 2015) (“The disputed domain name combines two of Complainant's registered trademarks, WYNDHAM and EXTRA VACATIONS, omitting the space and adding the ".com" top-level domain name. These alterations do not diminish the similarity between the domain name and Complainant's marks.”). The Panel agrees that Respondent’s domain name is confusingly similar to Complainant’s marks per Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <lufthansa-flynet.com> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant contends Respondent has no rights or legitimate interests in the <lufthansa-flynet.com> domain name as Respondent is not commonly known by the domain name. Where a respondent lacks authorization, license, or permission to use a complainant’s mark the respondent is not commonly known by the domain name per Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name). Here, Complainant indicates it has never granted authorization, license, or permission to Respondent for the use of its marks. Moreover, the WHOIS record indicates that the registrant of the domain name is “Jane Dew.” Consequently, the Panel finds Respondent is not commonly known by the <lufthansa-flynet.com> domain name at issue per Policy ¶ 4(c)(ii).
Next, Complainant asserts Respondent does not use the <lufthansa-flynet.com> domain name in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use, as instead, Respondent’s domain name directs visitors to a website unconnected with Complainant. Use of a domain name containing the mark of another to redirect users to content wholly unrelated to a complainant does not represent a bona fide offer per Policy ¶ 4(c)(i) or a noncommercial or otherwise fair use per Policy ¶ 4(c)(iii). See Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Forum Dec. 6, 2003) (“Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).”). As a result, the Panel finds Respondent’s use of the <lufthansa-flynet.com> domain name to redirect Internet users to a website unconnected with Complainant is not in accordance with Policy ¶¶ 4(c)(i) and (iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues Respondent’s registration and use of the <lufthansa-flynet.com> domain name is in bad faith as Respondent hosts pay-per-click advertisements. Bad faith may be demonstrated where a domain name is used to divert business from a complainant to a competing website for commercial gain via pay-per-click advertisements. See 3M Company v. Nguyen Hoang Son / Bussiness and Marketing, FA1408001575815 (Forum Sept. 18, 2014) (finding that the respondent’s use of the disputed domain name to host sponsored advertisements for Amazon, through which the respondent presumably profited, indicated that the respondent had used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv)). The Panel agrees and finds bad faith per Policy ¶ 4(b)(iv).
Last, Complainant asserts Respondent’s registration and use of the <lufthansa-flynet.com> domain name is in bad faith as Respondent had actual knowledge of Complainant’s rights to its marks. Actual knowledge is sufficient for a finding of bad faith pursuant to 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). Respondent’s exact use of Complainant’s marks, particularly the well-known LUFTHANSA mark, establish to the Panel’s satisfaction that Respondent did have actual knowledge of Complainant’s marks, demonstrating bad faith under Policy ¶ 4(a)(iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lufthansa-flynet.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: April 16, 2018
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