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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

L’TUR Tourismus AG v. Dirk Kokott

Case No. DTV2001-0027

 

1. The Parties

The Complainant in this administrative proceeding is L’TUR Tourismus AG, ("Complainant"), a corporation, incorporated in Baden-Baden, Germany with its main business address at medien centrum, Augustaplatz 8, Baden-Baden, Germany. Complainant's authorised representative is Dr. Astrid Lediger, Graefe & Partner, attorneys at law, München, Germany.

According to the Registrar's (dotTV) WHOIS database, the Respondent in this administrative proceeding is Dirk Kokott ("Respondent"), 278 Cliffwood Drv., Simi Valley, California, United States of America.

 

2. The Domain Name and Registrar

The domain name at issue is <ltur.tv> ("Domain Name"), registered with The .tv Corporation International, 1100 Glendon Avenue, 8th floor, Los Angeles, California, United States of America.

 

3. Procedural History

A Complaint ("Complaint") pursuant to the Uniform Domain Name Dispute Resolution Policy, implemented by the Internet Corporation for Assigned Names and Numbers ("ICANN") on October 24, 1999 ("Policy"), and under the Rules for Uniform Domain Name Dispute Resolution Policy, implemented by ICANN on the same date ("Rules"), was submitted to the World Intellectual Property Organization Arbitration and Mediation Center ("WIPO Center") on October 26, 2001, by e-mail and was received on October 30, 2001, in hardcopy.

The Acknowledgement of Receipt of Complaint was submitted to the Complainant by the WIPO Center on November 2, 2001.

On November 6, 2001, a Request for Registrar Verification was transmitted to the Registrar which confirmed the next day with its Verification Response that the disputed Domain Name was registered with The .tv Corporation International and that Respondent, Dirk Kokott, was the current registrant of the disputed Domain Name.

The assigned WIPO Center Case Manager completed a Formal Requirements Compliance Checklist on November 8, 2001, without recording any formal deficiencies.

The Panel independently determines and agrees with the assessment of the WIPO Center that the Complaint is in formal compliance with the applicable requirements.

A Notification of Complaint and Commencement of Administrative Proceeding ("Commencement Notification") was transmitted to the Respondent on November 8, 2001, setting a deadline of December 3, 2001, by which the Respondent could file a Response to the Complaint.

Since Respondent failed to submit any Response to the Complaint within the set time-limit, a Notification of Respondent Default was sent by the WIPO Center to Respondent on December 3, 2001. The Panel would like to note that Respondent has until today failed to file any form of Response to the Complaint.

Complainant requested a single-member panel. Since Respondent did not file a Response, the WIPO Center invited the undersigned to serve as sole panelist and transmitted to him a Statement of Acceptance and Request for Declaration of Impartiality and Independence which was duly signed and returned to the WIPO Center on December 11, 2001.

The WIPO Center transmitted to the parties on December 11, 2001, a Notification of Appointment of Administrative Panel and Projected Decision Date as of December 27, 2001. The Administrative Panel finds that it was properly constituted and appointed in accordance with the Policy, the Rules and the WIPO Supplemental Rules.

 

4. Factual Background

The following facts and statements appear from the Complaint and its annexed documents which have not been contested by Respondent:

Complainant is the registered owner of the trademark "l’tur" for the services of travel agencies, including air travel; traffic service agencies, escorting of travelers. This trademark was registered in Germany at the German Patent and Trademark Office (DPMA) on September 18, 1996, with priority of July 25, 1996, and is also registered internationally for the countries Austria, Benelux, Czech Republic, France, Hungary, Italy, Poland, Portugal, Spain, Switzerland, Denmark, Finland, Sweden and United Kingdom with priority of the German registration. In addition, the trademark is internationally extended to the countries Bosnia-Herzegovina, Bulgaria, China, Croatia, Egypt, Kenya, Latvia, Liechtenstein, Morocco, Slovakia, Slovenia and Yugoslavia with priority of May 23, 2000. Certificates for all these trademark registrations for "l’tur" were attached to the Complaint [Annex 3 - 6]. The trademark is used for the services of travel agencies, particularly for air journeys and the services of transport agencies.

Furthermore, Complainant is the registrant of a high number of Domains containing the name <ltur> or words confusingly similar to <ltur> (e.g. <lturs>, <ltour>, <l-tur>, etc.), amongst them <ltur.com>, <ltur.de>, <ltur.at>, <ltur.ch>, and more than hundred domain names using the word <ltur> in connection with other words, mainly town-names (e.g. <ltur-amsterdam.com>, <ltur-berlin.de>, <ltur-zuerich.com>, etc.)

The disputed Domain Name <ltur.tv> was registered by Respondent on August 24, 2000.

 

5. Parties’ Contentions

A. Complainant

Complainant contends that:

- the Domain Name is identical to a trademark or service mark in which the Complainant has rights; and

- the Respondent has no rights or legitimate interests in respect of the Domain Name; and

- the Domain Name was registered and is being used in bad faith; and

- the Domain Name <ltur.tv> should be transferred to the Complainant.

Additional respective contentions of the Complainant are contained in the following discussions and findings.

B. Respondent

As mentioned above, Respondent has been notified in accordance with paragraph 2(a) of the Rules, but failed to submit a Response in accordance with the requirements under the Policy. Thus, Complainant's allegations are deemed to be non contested.

 

6. Discussion and Findings

Paragraph 4(a) of the policy directs that the Complainant must prove each of the following:

"(i) that the Domain Name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and

(iii) that the Domain Name has been registered and is being used in bad faith."

Identical or confusingly similar Domain Name: Policy 4(a)(i)

Complainant is the holder of the registered trademark "l’tur" which obviously is confusingly similar or even identical with the disputed Domain Name, even though the apostrophe of the trademark is not included. The fact that apostrophes, for technical reasons, can not be used in domain names leads this Panel to the conclusion that such difference, as Complainant maintains, is irrelevant in law. Moreover, since Complainant itself uses for its businesses mainly second level domain names identical to the contested Domain Name (<ltur>), the possibility of confusion with Complainant's trademark for the public is very obvious.

Thus, the Panel holds that the Complainant has sufficiently met its burden of proof established by subparagraph (i) of the Policy's paragraph 4(a).

Respondent's Rights or Legitimate Interests in the Domain Name: Policy 4(a)(ii)

It is first convenient to recall that, according to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by establishing any of the following elements:

"(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or

(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or

(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue."

Respondent has not provided any evidence of legitimate rights or interests in the above sense, and has not shown any other circumstances reflecting his right or legitimate interest in the disputed Domain Name.

Respondent failed to submit any proof of the fact that he, as an individual, business, or other organization, has been commonly known by the Domain Name, and to this Panel’s knowledge the Respondent is not presently conducting real activities under the name "ltur".

Hence, in the absence of any indications as to a legitimate interest of Respondent to use the Domain Name, the Panel finds that Complainant has fulfilled its burden of proof under paragraph 4(a)(ii) of the Policy.

Domain Name Registered and Used in Bad Faith: Policy 4(a)(iii)

The third element to be established by Complainant is that the Domain Name has been registered and used in bad faith.

Paragraph 4(b) states the following four (non-exclusive) circumstances which, if found to be present, are deemed to provide evidence of bad faith in registering and using the Domain Name:

"(i) circumstances indicating that you [Respondent] have registered or you [Respondent] have acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to the Complainant who is the owner of the trademark or service mark, or to a competitor of that Complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the Domain Name; or

(ii) you [Respondent] have registered the Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding Domain Name, provided that you have engaged in a pattern of such conduct; or

(iii) you [Respondent] have registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the Domain Name, you [Respondent] have intentionally attempted to attract, for commercial gain, Internet users to your web site 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 your web site or location or of a product or service on your web site or your location."

Complainant alleges that Respondent registered and intended to use the Domain Name in bad faith.

Since Respondent is German, it must be assumed that he is familiar with the trademark at issue. "L’tur" is a registered German trademark with reputation, and this was already the case at the time of registration.

According to precedents established under the Policy, one must assume that a person deciding to register a domain name with the intention of making a real use of it in business activities on the Internet has an obligation to check if the domain name in question is available for registration, at least in the gTLD’s. As rightly stated in Modern Times Group (MTG) AB v. Stefan Häge, Kriströms Advokatbyrå AB, WIPO Case No. DTV2000-0004, if there are competitors that use a similar domain name, or if the domain name is registered in other TLD, it is reasonable to take precautions in order to avoid confusion or trademark infringement. No such precautions have been shown by Respondent in the present case.

Furthermore, according to the Complaint, Respondent admitted in a phone call with Complainant’s representative that he in fact knew Complainant’s trademark when registering the Domain Name <ltur.tv>. During this phone call, Respondent allegedly informed Complainant of his plan to establish a forum for travel agencies in the United States. Since Complainant’s trademark is not registered in the U.S. Respondent considered himself to be free to do that. However, until today, the Domain Name is still not in use for any such purpose.

In the light of the above and with a view to the fact that Respondent is German, and that the Domain Name at issue is more attractive in countries where the trademark is highly promoted and well-known, this Panel relies upon Complainant's non contested allegation that it is more likely that Respondent intended to use the Domain for a travel agency in Germany or any other countries where Complainant’s trademark is well known. The Panel is of the opinion that Respondent, by registering the Domain Name <ltur.tv>, impeded Complainant in using this Domain Name for an Internet presence. Furthermore, if Respondent indeed was planning to establish under the Domain Name a forum for travel agencies in the USA or elsewhere (as alleged by Complainant), such web site presence would obviously create a likelihood of confusion with Complainant’s trademark and would mislead the public as to the source, sponsorship, affiliation, or endorsement of Respondent’s web site.

Hence, in an overall assessment of the contentions and the facts mentioned above, the Panel concludes that the requirements of paragraph 4(a)(iii) of the Policy have been sufficiently made out by Complainant and that Respondent's bad faith is proven.

 

7. Decision

In view of the circumstances and facts discussed above, the Panelist decides that the disputed Domain Name is identical to the registered trademark in which the Complainant has rights, that the Respondent has no rights or legitimate interests in respect of the Domain Name, and that the Respondent's Domain Name has been registered and used in bad faith.

Accordingly, pursuant to paragraph 4(i) of the Policy, the Panelist requires that the disputed Domain Name, <ltur.tv>, shall be transferred to the Complainant.

 


 

Bernhard F. Meyer-Hauser
Sole Panelist

Dated: December 20, 2001

 

Источник информации: https://internet-law.ru/intlaw/udrp/2001/dtv2001-0027.html

 

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