WIPO Arbitration and Mediation CenterADMINISTRATIVE PANEL DECISIONRewe Touristik Hotels & Investment GmbH v. Gee Whiz Domains Privacy Services and Gregory RicksCase No. D2008-13421. The PartiesThe Complainant is Rewe Touristik Hotels & Investment GmbH of Cologne, Germany, represented by Grünecker, Kinkeldey, Stockmair & Schwanhäusser, Germany. The Respondents are Gee Whiz Domains Privacy Services of Nevada, United States of America and Gregory Ricks of Texas, United States of America. 2. The Domain Name and RegistrarThe disputed domain name, <lti.com> (the “Domain Name”), is registered with Moniker Online Services, LLC. (the “Registrar”). 3. Procedural HistoryThe Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 2, 2008. On September 3, 2008, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On the same date, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name, which differed from the named respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 10, 2008 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on September 15, 2008. The Center verified that the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”). In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 18, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was October 8, 2008. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on October 9, 2008. The Center appointed Tony Willoughby as the sole panelist in this matter on October 15, 2008. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. The amendment to the Complaint referred to above was occasioned by the Registrar providing the contact details for the underlying user of the Domain Name: Gregory Ricks; the Registrar reflected the registrant details on its WhoIs database following notification of the Complaint. The original registrant was Gee Whiz Domains Privacy Services. In the absence of any explanation from either the Registrar or Gregory Ricks, the Panel proposes to treat Gee Whiz Domains Privacy Services and Gregory Ricks as one and making the assumption that Gregory Ricks has at all times been the underlying user of the Domain Name benefiting from the privacy protection afforded by Gee Whiz Domains Privacy Services. Gee Whiz Domains Privacy Services and Gregory Ricks, are together hereinafter referred to as “the Respondent”. In some cases of this kind the disclosure of underlying registrants by registrars can materially and adversely affect inter alia the position of the complainant with regard to the mutual jurisdiction clause. This may require due consideration by complainants where the complainant has selected the jurisdiction of the courts of the location of original registrant and the new registrant is resident in a forum less convenient to the complainant. The Center provides complainants an opportunity to reformulate its choice of jurisdiction in such circumstances, but this is sometimes overlooked by complainants. In this case, however, both registrants (as identified in the original and amended Complaint respectively) are resident in the United States of America, the Registrar is located in the United States of America, and the Complainant has maintained its original selection, namely the jurisdiction of the (competent) courts of the United States of America. 4. Factual BackgroundThe Complainant is a member of the Rewe Group, a well-known German retailing group. The Complainant (formally named LTI Hotelbeteiligungs- und Investitions gmbH) offers travel and hotel services under the name LTI International Hotels and its abbreviated form, LTI. The Complainant’s website is connected to its domain name, <lti.de>. From an extract from the Commercial Register of the County Court of Düsseldorf exhibited to the Complaint it appears that the Complainant’s business commenced nearly 20 years ago in 1989. The Complainant is the registered proprietor of four (two German, one Community and one International) service mark registrations for device marks, the most prominent feature of which are the letters “LTI” in block capitals. The earliest of those registrations is German registration no. 39500115.3 dated October 9, 1995 in classes 35, 39 and 43 for a variety of services related to the Complainant’s core activity of the provision of travel and hotel services. The Domain Name was registered on September 26, 2000. As indicated above, as at the date of the original Complaint the Domain Name was registered in the name of Gee Whiz Domains Privacy Services. However, from a Joker.com Whois search conducted by the Complainant May 7, 2008, the Domain Name appears to have been registered at that date in the name of “[44867] Moniker Privacy Services”. It is not known whether the current registrant, Gregory Ricks, has been the underlying registrant throughout the life of the Domain Name. The Domain Name is connected to a pay-per-click webpage featuring sponsored links to a variety of commercial sites, primarily sites operating in the Complainant’s core area of activity of the provision of travel and hotel services, some of which are German language sites. 5. Parties’ ContentionsA. ComplainantThe Complainant contends that the Domain Name is identical or confusingly similar to its registered and unregistered trademarks featuring the letters “LTI”. The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the Domain Name. Finally, the Complainant contends that the Domain Name was registered and is being used in bad faith within the meaning of paragraph 4(b)(iv) of the Policy. The Complainant’s contentions are set out in greater detail in section 6 below. B. RespondentThe Respondent did not reply to the Complainant’s contentions. 6. Discussion and FindingsA. GeneralAccording to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove that: (i) The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) The Domain Name has been registered in bad faith and is being used in bad faith. B. Identical or Confusingly SimilarThe Domain Name comprises the letters “lti” and the generic domain suffix “.com” It is common for the generic domain suffix to be ignored when assessing identity or confusing similarity for the purposes of paragraph 4(a)(i), so the issue for the Panel is whether the letters “lti” are identical or confusingly similar to a name or mark in which the Complainant has trademark or service mark rights. The Complainant’s service mark registrations are all for design marks, the most prominent feature of which are the letters “LTI” in block capitals. The other elements of the marks are not of a nature such as to qualify in any way the brand impact of the letters “LTI”. Accordingly, the Panel is satisfied that the Domain Name is confusingly similar to a trademark or service mark in which the Complainant has registered rights. It is not therefore necessary for the Panel to assess whether the Complainant has relevant unregistered trademark rights. However, the Panel is satisfied from the evidence put before the Panel that the Complainant promotes itself by reference to and is recognized by, LTI, the abbreviated form of its name. C. Rights or Legitimate InterestsThe Complainant asserts that it has never authorized the Respondent to use the letters ‘lti’ as part of the Domain Name or for any other purpose. The Complainant contends that the Respondent registered the Domain Name for the purpose for which it is currently being used, namely to attract Internet users to his site for commercial gain (i.e. pay-per-click revenue). The Complainant contends that the attraction of the Respondent’s website for Internet users lies in the Domain Name, which will be understood as a reference to the Complainant. The Complainant contends that that is obvious from the nature of the sponsored links on the Respondent’s website, which are predominantly travel/hotel related, some of them being in the German language, the language of the Complainant’s home country. The Complainant contends that the Respondent’s service offering cannot in these circumstances be regarded as a bona fide use of the Domain Name for the purposes of paragraph 4(c)(i) of the Policy. Nor, it claims, are either of the other examples of rights or legitimate interests set out in paragraph 4(c) of the Policy applicable. The Respondent is not known by the letters “lti” and there is nothing legitimate, noncommercial or fair about the Respondent’s use of the Domain Name, which is calculated to deceive Internet users in that they will be likely to believe that a website connected to the Domain Name is in some way associated with the Complainant. The Panel finds that the Complainant has made out a prima facie case calling for an answer from the Respondent. The Respondent has chosen not to answer. That being so, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name. D. Registered and Used in Bad FaithThe Complainant contends that its case under the previous head supports a finding of bad faith registration and use within the meaning of paragraph 4(b)(iv) of the Policy. The Panel agrees. Paragraph 4(b)(iv) of the Policy reads: “by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or location.” The Panel is satisfied that a not insignificant proportion of the visitors to the Respondent’s website will be visiting the site expecting to reach a website of or authorized by the Complainant. The Panel agrees with the Complainant that the nature of the sponsored links on the Respondent’s website make it quite clear the person responsible for selecting (or approving) those links had the Complainant in mind when making the selection. The Panel finds that the Domain Name was registered and is being used in bad faith within the meaning of paragraph 4(b)(iv) of the Policy. 7. DecisionFor all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <lti.com>, be transferred to the Complainant.
Tony Willoughby Dated: October 29, 2008
: https://internet-law.ru/intlaw/udrp/2008/d2008-1342.html
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