Complainant is Lauda Europe Ltd., Malta, and Laudamotion GmbH, Austria, represented by Bardehle Pagenberg Partnerschaft mbB, Germany.
Respondent is Registration Private, Domains By Proxy, LLC, United States of America / Mr. John Lanigan, United Arab Emirates, self-represented. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 23, 2020. On September 23, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On September 24, 2020, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on September 25, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 15, 2020. The Response was filed with the Center October 14, 2020. The Center appointed Robert A. Badgley, Luca Barbero, and Scott R. Austin as panelists in this matter on October 27, 2020. The Panel finds that it was properly constituted. Each member of 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. On November 6, 2020, the Center received an unsolicited supplemental filing, with annexes, from Complainant. In its discretion, and because the supplemental materials dealt directly with assertions set forth in the Response which could not have reasonably been anticipated at the time the Complaint was filed, the Panel accepted the supplemental filing. 4. Factual Background The Parties have made many allegations and arguments, and have offered extensive material into the record of this case. The Panel will not address those assertions and arguments not necessary to the disposition of this case, as some of them are unnecessary and, at times, baseless. Complainant Laudamotion GmbH (“Laudamotion”), based in Austria, is an aviation firm operating the airline Lauda, which flies primarily in Europe. It is a subsidiary of RyanAir, an aviation firm based in Ireland. Complainant Lauda Europe Ltd. (“Lauda Europe”), based in Malta, is also a subsidiary of RyanAir. Laudamotion was founded by famous racecar driver Niki Lauda, and Laudamotion has owned the European Union registered trademark LAUDAMOTION since February 1, 2005, Reg. No. 003330685 in connection with transportation services, in Nice classes 9, 14, 25, 35, and 39. Laudamotion will soon be transferring rights in this mark to Lauda Europe. Except where the context requires otherwise, the Panel shall refer to Laudamotion and Lauda Europe collectively as “Complainant”. Complainant also asserts non-registered trademarks in LAUDA, based on Complainant’s use of the alleged mark LAUDA (standing alone) on its website and certain marketing materials, and based on the fact that LAUDA (standing alone) appears on its aircraft, and based on news articles in the aviation press in June and July 2020 referring to Laudamotion as “Lauda”. The Panel also draws on its personal knowledge of the history and use of the LAUDA mark in Europe, and the Panel takes judicial (or arbitral) notice of the fact that LAUDA has been used for at least several years as a source identifier for Complainant’s airline services, and that the LAUDA mark has acquired secondary meaning as being associated with Complainant’s services. On July 28, 2020, Complainant announced via press release that Laudamotion’s airline operations were to be transferred to Lauda Europe. The Domain Name was registered on July 30, 2020, two days after the announcement that Lauda Europe would operate Complainant’s airline. The Domain Name does not currently resolve to an active website. A “Launching Soon” marker appears on the site. Respondent describes himself as “a European National Individual, with home roots in Ireland”. Respondent has lived in the United Arab Emirates since 2011, and he states that he is “making preparations to return back to Europe in the near future to roll out a long-awaited Marine Business Venture”. According to Respondent, he “initiated a business plan dating back to 2018 for a Yacht Chartering Business”. Annexed to the Response is a rather well-developed business plan document. The document makes reference to projected financial information for the period 2019 – 2024, but there is no evidence in the record to confirm that the document was actually generated prior to August 2020, when the Parties first began to correspond with each other about the Domain Name (discussed below). In the purported business plan, Respondent states that he is a “seasoned Marine Captain” with a “lifelong dream to Captain Yachts”. In the plan, Respondent explains that he chose the name “Lauda Europe” because of his pride in “my European history, Roman Catholic history to be precise and finding the Latin word ‘Lauda’ meaning ‘Praise’”. He thus claims to have chosen “Lauda Europe” to reflect “Praise Europe”. (Respondent did not explain why he opted for the Latin word “lauda” but contented himself with the English word “Europe” – the Latin word for “Europe” being “Europa”). Respondent’s business plan indicates that the crown jewel of Respondent’s fleet would be the “Princess 68”. On August 1, 2020, two days after registering the Domain Name, Respondent filed a trademark application with the European Union Intellectual Property Office (“EUIPO”) for the mark LAUDAEUROPE (Application number 018282093). This application sought trademark protection in connection with “airline services” in Nice class 39. Nothing in Respondent’s EUIPO application refers to yachting or boating services. Complainant filed an opposition to that trademark application on September 21, 2020. Complainant asserts, and Respondent does not deny, that Respondent is an airline pilot for Etihad Airlines, and that Etihad Airlines is a “direct competitor” of Complainant. Respondent asserts that, because he has lived in the United Arab Emirates since 2010, it is “highly unlikely” that he “could have been aware of the Complainants [sic] activities”. Respondent does not, however, outright deny knowledge of Complainant’s LAUDAMOTION and LAUDA trademarks. In its supplemental filing, Complainant asserts that Respondent’s alleged business plan from 2018 is a “falsified document”. According to Complainant, Respondent’s business plan document is “a direct, near word for word copy of a mock business plan for a fictitious luxury boat charter company called [name redacted, referred to hereafter as ‘ABC’], aimed to operate in the Maldives”. Complainant notes that the ABC mock business plan has been available on the Internet since 2010. The mock ABC business plan was annexed to Complainant’s supplemental filing. The Panel has reviewed Respondent’s purported 2018 business plan and the 2010 mock ABC business plan, and finds the two documents strikingly similar. As Complainant notes, Respondent’s plan contains numerous swaths of outright verbatim copying from the ABC plan. It appears obvious that Respondent’s plan was just a cut-and-paste job from the ABC plan that Respondent found on the Internet. Complainant also states in its supplemental filing that Respondent has not yet bought the “Princess 68” boat. There was some correspondence between Complainant’s lawyer and Respondent’s lawyer between August 28, 2020, and September 17, 2020. Complainant asserted its trademark rights and demanded a transfer of the Domain Name, and Respondent asserted its rights in the Domain Name and denied trademark infringement. The Panel notes that Respondent had counsel during this exchange of correspondence, but Respondent is representing himself without counsel in this UDRP proceeding. Finally, Complainant asserts that Respondent has never had a relationship with Complainant, and that Complainant has never authorized Respondent to use the LAUDA trademark in a domain name or otherwise. 5. Parties’ Contentions A. Complainant Complainant contends that it has satisfied each of the elements required under the Policy for a transfer of the Domain Name. B. Respondent Respondent asserts that he has a legitimate interest in the Domain Name, and he denies bad faith registration and use of the Domain Name. Respondent’s essential assertions are set forth in the “Factual Background” section above. 6. Discussion and Findings Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name: (i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Panel concludes that Complainant has unregistered rights in the trademark LAUDA through use demonstrated in the record. As noted above, the Panel finds sufficient evidence in the record that Complainant has been using the mark LAUDA for several years, including on its website, written materials, and on its aircraft. The Panel also repeats its own finding that LAUDA has become associated with Complainant’s airline services. The Panel finds the Domain Name to be confusingly similar to the LAUDA mark. The Domain Name entirely incorporates the LAUDA mark and adds the geographic term “Europe”. This additional term does not prevent a finding of confusing similarity between the Domain Name from the LAUDA mark, and particularly the Panel notes that Europe is the market for Complainant’s services. In the alternative, the Panel finds that Complainant has rights in the mark LAUDAMOTION, through registration and use demonstrated in the record. The Panel also concludes that the Domain Name is confusingly similar to that mark. The dominant portion of the mark – LAUDA – is clearly recognizable within the Domain Name. The additional word “Europe” does not prevent a finding of confusing similarity between the mark and the Domain Name. Complainant has established Policy paragraph 4(a)(i). B. Rights or Legitimate Interests Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing 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. The Panel finds that Complainant’s burden is satisfied, and concludes that Respondent lacks rights or legitimate interests in respect of the Domain Name. The chief basis for this conclusion is that Respondent’s story is a fabrication. Respondent claimed to have developed a business plan in 2018 – two years before registering the Domain Name – which, if genuine, would have required some investigation into and analysis of Respondent’s bona fides. With the disclosure of the 2010 mock ABC plan, however, which Respondent essentially copied, Respondent’s purported 2018 plan (with no accompanying evidence that it was actually developed in 2018) is found by the Panel to be a fabrication. The Panel also does not believe several other assertions of Respondent, including his “Praise Europe” explanation, and his explanation that his trademark application (which refers to airline services but not yachting services) was legitimately pursued. The Panel is also suspicious about the fact that the Domain Name was registered within a day or two following the news coverage of Complainant changing its brand from LAUDAMOTION to LAUDA EUROPE. Further, Respondent states that it is “unlikely” that, given his residence in the United Arab Emirates, he would have been aware of Complainant’s airline activities, but Respondent does not actually deny such knowledge. Because Respondent submitted his own Response on his own behalf, there is no need for Respondent to couch his state of knowledge about Complainant in terms of likelihood – Respondent either knew about Complainant or he did not. He could simply have denied knowledge as a fact, not as a probability. Finally, Respondent does not deny being an airline pilot for an airline in competition with Complainant. In sum, the Panel finds Respondent entirely lacking in credibility, and that his alleged business plan is a ruse, a mere pretext to manufacture legitimacy where there is none. Complainant has established Policy paragraph 4(a)(ii). C. Registered or Used in Bad Faith Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation”, are evidence of the registration and use of the Domain Name in “bad faith”: (i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or (ii) that Respondent has 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 Respondent has engaged in a pattern of such conduct; or (iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or (iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location. The Panel concludes that Respondent registered and used the Domain Name in bad faith. The Panel incorporates here its prior discussion in the “Rights or Legitimate Interests” section. The Panel concludes that Respondent was aware of Complainant’s mark when he registered the Domain Name, and targeted that mark for commercial gain, probably to take advantage of its similarities with the announced Lauda Europe’s name and LAUDA mark. It is not clear which of the non-exclusive bad faith factors quoted above was Respondent’s primary motivation vis-à-vis the Domain Name, but the Panel finds that the submissions and evidence provided lead to a conclusion of bad faith. Furthermore, Respondent has not disputed that he was commercially motivated. At a minimum, the Panel is prepared to conclude that Policy paragraph 4(b)(iii) applies here, given the finding that Respondent works for a direct competitor of Complainant. Complainant has established Policy paragraph 4(a)(iii). 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name Robert A. Badgley Luca Barbero Scott R. Austin
Presiding Panelist
Panelist
Panelist
Date: November 9, 2020
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