As reported by Elliot today, Lufthansa airlines won a UDRP case over the domain LH.com.
Lufthansa relied on a a german common law trademark whcih they said was established in 1945. However the airline did not file for an actual trademark on the term LH until 1999.
The domain was acquired by the current holder in 2004.
First let me note that it was a three panel decision and the vote was 2-1 in favor of Lufthansa.
The was an dissenting opinion issued by David E. Sorkin who voted in favor of the domain holder.
There are many problems with this decision.
For one I do not Lufthansa using this mark.
I just went thought their whole site and I can find no reference to the term LH.
I do not find one instance where they refer to their company as LH, or use it as one would expect an important mark to be used.
Certainly this is quite differnet from american airlines that uses the term “AA” all over their site and in advertising.
The only connection I can find for the term LH to Lufthansa is that there flight numbers all have LH in them
So if you were flying from new York to Berlin you might be on flight LH405.
That’s it. This is the only place I can find on there whole site, and they have a lot of material, the term LH.
Interestingly even in their history of Lufthansa on their site where they list milestones in the airlines history dating back to 1926, their is not one mention of the term “LH”, and certainly not any refernce to the use of LH in 1945 or their trademark registration in 1999.
Now for the language in the decision.
The panel said in part find for Lufthansa:
“Complainant contends that Respondent currently uses the lh.com domain name to resolve to a web page that features Respondent’s OXiDE search engine and displays numerous sponsored links to third party websites relating to various subjects. Complainant contends that Respondent profits from receiving click-through fees for each misdirected user. The Panel finds that such use is not a use in connection with a bona fide offering of goods or services.”
This is a problem for all domainers.
The panel goes on to say:
“”””Respondent’s business model involves the indiscriminate acquisition and use of as many such domain names as possible. The traditional analyses of the rights to or legitimate interests element should not apply in gross when a registrant is not seeking to use any particular domain name to conduct business, is not otherwise known by that name, and has no interest in the nature of the transferor’s rights there from. Thus, the Panel finds that Complainant sufficiently demonstrated that Respondent lacks rights or legitimate interests in the challenged domain name.””
The panel is thereby holding against the domain holder because the domain holder had in it words a ” mass acquisition of two-letter domain names”
The panel therefore suggests if the domain holder only owned 1 or 2, two letter domains the ruling might have been different?
The panel also took issue with the domain holder offering to lease the domain to Lufthansa.
“The Panel finds that an offer to rent or lease the domain name for an amount in excess of reasonable costs also supports findings of bad faith registration and use”
It certainly did not help the domain holder that some of the links on the parked page went to what the panel said was competing travel related businesses.
The bottom line.
A very valuable and very generic two letter domain was taken by the panel and given to Lufthansa, based on trademark of what appears to be a very lightly used term by the trademark holder.
LH.com is not famous in my opinion. I have never heard of it until today. I have never seen it in a ad for Lufthansa and as I said I can’t find any reference to its use on its site, other than in its flight numbers.
I think Lufthansa has no more right to the LH term because of its use in the flight numbers than it does in the numerical portion of the flight number.
In his dissent Mr. Sorkin stated in part:
“”””I simply do not believe it is likely that Respondent’s reasons for acquiring the disputed domain name were related in any way to Complainant or its mark, and therefore would not find that the domain name was registered in bad faith.
I reach this conclusion primarily for two reasons: First, based upon the evidence before the Panel I doubt that Respondent was even aware of Complainant’s LH trademark when it acquired the domain name, and mere constructive notice of a trademark is insufficient under the Policy. Second, usage of LH as Complainant’s mark appears to be quite rare compared to other senses in which LH is used, making it unlikely that Respondent would have selected the disputed domain name in order to target Complainant’s mark even if it had been aware of the mark at the time.””””
How can you be found to be taking advantage of a mark which the trademark holder doesn’t even use?
No one is going to LH.com thinking about Lufthansa because no one know of the mark or Lufthansa use of it.
Finally if cases like this are allowed to stand which declares parking pages to not be bona fide offering of goods or services, we are all going to have a problem.
Fortunately in this case it appears the domain holder has deep pockets and already has a federal lawsuit on this same issue pending.