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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Deutsche Lufthansa AG v. Acme Mail

Case No. D2008-1580

1. The Parties

The Complainant is Deutsche Lufthansa AG, Frankfurt, Germany, represented by Rauschhofer Rechtsanwälte, Germany.

The Respondent is Acme Mail, Miami, Florida, United States of America.

2. The Domain Name and Registrar

The disputed domain name <luthansa.com> is registered with Intercosmos Media Group d/b/a directNIC.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 17, 2008.

On October 21, 2008, the Center transmitted by email to Intercosmos Media Group d/b/a directNIC.com a request for registrar verification in connection with the disputed domain name.

On October 21, 2008, Intercosmos Media Group d/b/a directNIC.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the registrant and contact information for the disputed domain name and provided a clarification by email on October 24, 2008.

The Center verified that the 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 October 28, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was November 17, 2008.

The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 18, 2008.

The Center appointed James Bridgeman as the sole panelist in this matter on November 27, 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.

4. Factual Background

The Complainant is a German corporation, having its principal place of business in Cologne, Germany. The Complainant is an airline based in Germany.

The Complainant is the registered proprietor of a large number of trademarks consisting of, or incorporating the word “lufthansa” in many countries of the world. The earliest of those registrations dates from September 1979, on which the Complaint is primarily based on:

German Trademark LUFTHANSA (Reg.-No: 990835)

Classes: 36; 37; 39; 41; 42

Filing date: 02.04.1979

Date of registration: 25.09.1979

Date of publication of the registration: 31.10.1979

The Complainant is furthermore inter alia proprietor of the registered trademarks as follows:

German Trademark LUFTHANSA (Reg.-No: 990834)

Classes: 36; 39; 41; 42

Filing date: 02.04.1979

Date of registration: 25.09.1979

Date of publication of the registration: 31.10.1979

German Trademark LUFTHANSA (Reg.-No: 39871924.1)

Classes: 06; 08; 09; 14; 16; 18; 20; 21; 24; 25; 26; 28

Filing date: 10.12.1998

Date of registration: 12.04.1999

Date of publication of the registration: 12.05.1999

German Trademark LUFTHANSA (Reg.-No: 39871923.3)

Classes: 06; 08; 09; 14; 16; 18; 20; 21; 24; 25; 26; 28

Filing date: 10.12.1998

Date of registration: 12.04.1999

Date of publication of the registration: 12.05.1999

European Community Trademark LUFTHANSA (Reg.-No: 001212539)

Classes: 06; 08; 09; 14; 16; 18; 20; 21; 24; 25; 26; 28; 36; 37; 39; 41; 42

Filing date: 11.06.1999

Date of registration: 26.02.2001

Date of publication of the registration: 09.04.2001

European Community Trademark LUFTHANSA (Reg.-No: 001210665)

Classes: 06; 08; 09; 14; 16; 18; 20; 21; 24; 25; 26; 28; 36; 37; 39; 41; 42

Filing date: 11.06.1999

Date of registration: 29.11.2000

Date of publication of the registration: 08.01.2001

International Trademark LUFTHANSA (Reg.-No: 722971)

Classes: 06; 08; 09; 14; 16; 18; 20; 21; 24; 25; 26; 28

Date of registration: 05.08.1999

International Trademark LUFTHANSA (Reg.-No: 450006)

Classes: 36; 37; 39; 41; 42

Date of registration: 06.12.1979

US-Trademark LUFTHANSA (Reg.-No: 74383260)

Classes: IC 039. US 100 105

Filing Date: 27.04.1993

Date of registration: 20.08.1996

As there was no Response filed there is no information available relating to the Respondent except that set out in the Complaint and the information provided by the Registrar in response to the Center’s registrar verification enquiry.

The domain name in dispute was registered on October 26, 2000. Database searches carried out by the Complainant indicate that the Respondent owns about 339 other domain name registrations.

The disputed domain name resolves to a landing page which leads to sub-pages with several sponsored links to third party web sites.

5. Parties’ Contentions

A. Complainant

The Complainant asserts that it has an extensive goodwill and reputation in the aviation industry and has origins tracing back to 1926. It has a large staff, and services over 350 destinations in more than 90 countries worldwide. Every year, the Complainant carries over 50 million passengers. It is a member of the Star Alliance Network flying to almost all countries of the world including the United States of America. In addition to its passenger and cargo services it provides aviation-related services such as catering, maintenance, overhaul, travel-related technology and tourism services.

The Complainant is the owner of the <lufthansa.com> domain name and that domain name resolves to the Complainant’s main web site which is linked to all of the Complainant’s other web sites. The Complainant has registered numerous other domain names incorporating the word “lufthansa”, e.g. <lufthansa.de> and <lufthansa.us>.

The Complainant asserts that it has rights in the LUFTHANSA trademark. The Complainant relies on the above trademark registrations and claims common law rights arising from its extensive and long established reputation in the use of the LUFTHANSA trademark in the aviation industry throughout the world.

The Complainant primarily relies on its rights in the German registration of the LUFTHANSA mark which was registered in 1979 and submits that its trademark registrations satisfy the threshold requirement of having trademark rights.

The Complainant submits that the disputed domain name is confusingly similar to its LUFTHANSA trademark. The Complainant further submits that this is a typical case of “typo-squatting” where the infringing domain name is merely one letter less than or different from the Complainant’s mark. The Complainant submits that the disputed domain name <luthansa.com> incorporates the Complainant’s LUFTHANSA trademark except that the letter “f” is omitted. The Complainant cites a number of decisions under the Policy in which panels made findings of confusing similarity in similar cases viz. Red Bull GmbH. v. Grey Design, WIPO Case No. D2001-1035 - finding the domain name <redbul.com> confusingly similar to complainant’s trademark RED BULL and AltaVista Company v. Saeid Yomtobian, WIPO Case No. D2000-0937 - finding the misspellings <altabista.com> and <altaista.com> confusingly similar to the ALTAVISTA mark; Breitling SA, Breitling USA Inc. v. Acme Mail, WIPO Case No. D2008-1000 where the respondent had registered the domain name <bretling.com> which differs from the trademark BREITLING only in the lack of the letter “i”; MasterCard International Incorporated v. Acme Mail, WIPO Case No. D2008-0701 where the respondent had registered the domain names <mastercrd.com> and <matercard.com> which differ from the trademark MASTERCARD only in the lack of the letter “a” and “s” respectively; and A.G. Edwards & Sons, Inc. v. Acme Mail, WIPO Case No. D2007-0355, where the respondent registered the domain name <agedward.com> which differs from the trademark A.G. EDWARDS only in the lack of the letter “s”.

The Complainant submits that the Respondent has no rights or legitimate interest in the disputed domain name.

The Policy provides that use of a domain name is legitimate if, prior to commencement of the dispute, a respondent has used the domain name or a name corresponding to the domain name in connection with the bona fide offering of goods or services. There is no such evidence of bona fide use by the Respondent in casu. The disputed domain name resolves to a landing page, which in turn, leads to sub-pages with several sponsored links to third party web sites. Thus the Respondent diverts Internet users searching for the Complainant’s web site, who may mis-type the Complainant’s LUFTHANSA trademark, to other sites.

The Respondent does not offer goods or services itself. The Complainant refers to the decision of the learned panel in Audi AG v. Jun Suk Min, WIPO Case No. D2007-0200) and submits that the use of a domain name for a web site providing only sponsored links does not establish rights or legitimate interest in the domain name.

The Complainant alleges that the Respondent is exploiting the Complainant’s LUFTHANSA trademark for financial gain by mis-directing Internet traffic intended for the Complainant. The panel in Sigikid H. Scharrer & Koch GmbH & Co. KG, MyBear Marketing-und Vertriebs GmbH, Mr. Thomas Dufner v. Bestinfo, WIPO Case No. D2004-0990 stated that “the sole diversion of Internet traffic by Respondent to other, unrelated web sites, does not represent a use of the domain name in connection with a bona fide offering of goods and services. Rather, the conduct of Respondent serves the purpose of generating revenues, e.g. from advertised pay-per-click products”. See also MasterCard International Incorporated v. DL Webb, WIPO Case No. D2008-0324.

Furthermore, the Complainant submits that the Respondent is neither commonly known by, nor was it ever known by, either by the name “Luthansa” or LUFTHANSA, nor does the Respondent have any rights in either of those names.

The Complainant is furthermore not aware of any relevant trademark application or trademark registration for the term Luthansa anywhere in the world.

Contact details supplied by the Respondent in registering the disputed domain name do not support a genuine connection to any rights in the disputed domain name. The Complainant submits that in the case Audi AG v. Jun Suk Min, WIPO Case No. D2007-0200, the panel evaluated this as an evidence for the absence of rights.

The Complainant has exclusive rights to the trademark LUFTHANSA and no license, permission, authorization or other consent has been granted to the Respondent to use LUFTHANSA in the disputed domain name.

The Respondent diverts Internet traffic intended for the Complainant to the web sites of third parties and thereby derives revenue from “click through”. Such use cannot be regarded as legitimate noncommercial or fair use of the disputed domain name.

The Complainant submits that the disputed domain name <luthansa.com> has been registered and is being used by the Respondent in bad faith.

The Complainant submits that the trademark LUFTHANSA is a very distinctive mark and has no meaning in any language other than as a trademark identifying the Complainant as a source of origin. It is highly unlikely that another person would choose that name or a slight variation thereof without the Complainant in mind and the possibility that Internet users will confuse it for the Complainant’s trademark. In addition, “lufthansa” is a German word, whereas the Respondent is an American company.

The domain name <luthansa.com> was registered by the Respondent in October 2000, more than 20 years after the first registration of the Complainant’s LUFTHANSA trademark. The Complainant submits that it defies common sense to believe that the Respondent coincidentally selected this precise domain name - in German language - without any knowledge of the Complainant and its trademarks and coincidentally uses the web site for sponsored links in relation with travel and aviation business. It is most likely that the Respondent was aware of the Complainant’s trademark and company name. The Respondent’s intention is evidently to free-ride on the fame of the LUFTHANSA mark (see mVisible Technologies, Inc. v. Navigation Catalyst Systems, Inc., WIPO Case No. D2007-1141).

The Respondent has no plausible reason to include either “lufthansa” or “luthansa” in a domain name other than to capitalize on the goodwill of the Complainant.

In addition, the Respondent falsely warranted in its registration agreement with the Registrar that the disputed domain name <luthansa.com> did not infringe other party’s rights.

The Complainant refers to the Registrar’s registration agreement, included as an annex to the Complaint and submits that in entering into the agreement the Respondent warranted that “to the best of your knowledge and belief, neither the registration of the domain name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party, and that the domain name is not being registered, used or facilitated for any unlawful purpose.” Before giving such a warranty, the Respondent should have carried out some trademark searches.

The Respondent registered the disputed domain name to attract Internet users who are looking for the Complainant’s web site. The Respondent’s use of the disputed domain name causes confusion with the Complainant’s trademark and disrupts the Complainant’s business by diverting consumers away from the Complainant’s web site. The Respondent thereby profits from the revenue generated by this web site. In Asian World of Martial Arts Inc. v. Texas International Property Associates, WIPO Case No. D2007-1415 this behaviour has been evaluated as use of the domain name in bad faith.

The Complainant submits that the disputed domain name <luthansa.com> is used to point to a web site containing sponsored links which creates a likelihood of confusion with the Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of the Respondent’s web site (see Eli Lilly and Company v. Texas International Property Associates-NA NA, WIPO Case No. D2008-0584). The Complainant submits that in the aforementioned decision the panel held that the respondent profited from the resulting click-through revenue. It was stated that this constitutes bad faith registration and use under paragraph 4(b)(iv) of the Policy. The Complainant also cites American University v. Richard Cook, NAF Case No. FA208629 (“Registration and use of a domain name that incorporates another’s mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”); and Perot Systems Corporation v. Perot.net, NAF Case No. FA95312 (finding bad faith where the domain name in question is obviously connected with the complainant’s marks, thus creating a likelihood of confusion strictly for commercial gain).

The Complainant submits that the Respondent has engaged in a pattern of registration of mis-spellings of trademarks of well-known companies as domain names, and gives the following examples: <bretling.com> (Breitling S.A., supra); <mastercrd.com> and <matercard.com> (MasterCard International, Inc., supra); <agedward.com> (A.G. EDWARDS, supra).

As the panel stated in Microsoft Corporation v. Cupcake Patrol, WIPO Case No. D2000-1344 the registration of numerous domain names that contain the names or marks of well-known business entities or famous persons also suggests an intent to profit from those registrations and is inconsistent with an intent to engage in any legitimate use of the domain names. See Stella D’oro Biscuit Co., Inc. v. The Patron Group, Inc., WIPO Case No. D2000-0012; Nabisco Brands Company v. The Patron Group, Inc., WIPO Case No. D2000-0032; J.P. Morgan & Co., Incorporated and Morgan Guaranty Trust Company of New York v. Resource Marketing, WIPO Case No. D2000-0035; Parfums Christian Dior v. 1 Netpower, Inc., WIPO Case No. D2000-0022.

The Complainant states that it applied to the Registrar via its authorized representative by email on August 29, 2008, requesting the immediate cancellation and transfer of the infringing domain name. Although the representative did receive a read receipt no reaction followed. The web site was neither disconnected nor transferred.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

Paragraph 4(a) of the Policy requires the Complainant to prove each of the following three elements to obtain an order that the disputed domain name should be cancelled or transferred:

(1) the disputed domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(2) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and

(3) the disputed domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The Complainant has satisfied this Panel that it has rights in the LUFTHANSA trademark and has acquired a substantial reputation and fame in the use of the trademark in many jurisdictions throughout the world.

This Panel accepts the Complainant’s submissions that the disputed domain name <luthansa.com> is confusingly similar to the Complainant’s LUFTHANSA trademark. The word “luthansa” is almost identical to the word “lufthansa” and for reasons given below in the view of this Panel the disputed domain name <luthansa.com> was chosen specifically because it is confusingly similar to the Complainant’s LUFTHANSA mark.

The Complainant has therefore satisfied the first element of the test in paragraph 4 of the Policy.

B. Rights or Legitimate Interests

The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interest in the disputed domain name. The Respondent is using the disputed domain name as the address of a web site that has links to other commercial sites. Given the similarity of the disputed domain name to the Complainant’s mark and the likelihood of diverting Internet traffic intended for the Complainant to the Respondent’s web site and on to potential competitors of the Complainant, such use of the disputed domain name is neither bona fide nor legitimate.

The Respondent has never been known by the names “lufthansa” or “luthansa”, nor is there any evidence that the Respondent has ever registered or applied to register the word “luthansa” as a trademark or service mark or acquired any rights in the nature of trademark rights in either of those words.

The Complainant having made out a prima facie case, the onus shifts to the Respondent to establish its right or legitimate interests.

Accordingly, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

The Complainant’s German trademark LUFTHANSA was registered on September 25, 1979 and was filed as early as April 2, 1979. Since then the Complainant has established substantial trademark rights, goodwill and reputation throughout the world through its portfolio of trademark registrations and use of the LUFTHANSA mark in the aviation industry.

This Panel further accepts that the trademark LUFTHANSA is a distinctive word and it is most unlikely that the Respondent was not aware of the Complainant’s rights and reputation when it registered the disputed domain name.

On the evidence, given the distinctiveness of the LUFTHANSA trademark, the extensive reputation and goodwill established by the Complainant in the mark and the extensive use of the Internet by travelers wishing to purchase airline tickets, this Panel is of the view that the Respondent registered the disputed domain name in bad faith.

This Panel is satisfied on the balance of probabilities, that the Respondent chose and registered the disputed domain name because of its similarity to the Complainant’s mark with the intention of taking predatory advantage of the goodwill of the Complainant in order to divert Internet traffic intended for the Complainant away to the Respondent’s web site.

The web site at the disputed domain name address contains a number of sponsored links, clearly for the purposes of generating revenue for the Respondent. Given that the Respondent is generating such revenue by the predatory use of a domain name that is confusingly similar to the Complainant’s trademark, this Panel is satisfied that the Respondent is engaged in “typosquatting” and is using the domain name in bad faith.

7. Decision

For 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 <luthansa.com> be transferred to the Complainant.


James Bridgeman
Sole Panelist

Dated: December 4, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-1580.html

 

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