WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION AB Electrolux v. Pluto Domain Services Private Limited / Private Who is For cbelprip 1702 Case No. D2008-1627 1. The Parties
Complainant is AB Electrolux (“Electrolux”), of Stockholm, Sweden, represented by Melbourne IT Digital Brand Services, Sweden.
Respondent is PLUTO DOMAIN SERVICES PRIVATE LIMITED / Private Who is For cbelprip 1702, of Mumbai, India. 2. The Domain Name and Registrar
The disputed domain name is registered with Lead Networks Domains Pvt. Ltd. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 24, 2008. On October 27, 2008, the Center transmitted by email to Lead Networks Domains Pvt. Ltd. a request for registrar verification in connection with the disputed domain name. On November 6, 2008, Lead Networks Domains Pvt. Ltd. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on November 6, 2008, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on November 6, 2008. The Center verified that the Complaint together with the amendment to 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 Respondent of the Complaint, and the proceedings commenced on November 7, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was November 27, 2008. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on November 28, 2008.
The Center appointed Nasser A. Khasawneh as the sole panelist in this matter on December 5, 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
Complainant owns hundreds of trademark registrations in over a hundred countries for the mark ELECTROLUX, including at least seven registrations in India. Complaint, Annex 5. Complainant also owns hundreds of domain name registrations which include the mark ELECTROLUX. Complaint, Annex 6.
The disputed domain name was registered on August 24, 2000. From sometime in 2001 until at least 2004, the web pages to which the disputed domain name routed displayed parking pages which advertised domain name registration services. At later dates, the page displayed sponsored link advertising.1 At present, the page displays sponsored link advertising that relates to Electrolux products, and, apparently products of competing companies.2 5. Parties' Contentions A. Complainant
Complainant avers that Complainant is a Swedish company founded in 1901. Claiming that it is the world's largest producer of appliances and equipment for kitchen, cleaning and outdoor use, Complainant also avers that Electrolux has leading market positions in white goods and floor-care products in both Europe and North America.
Complainant alleges that the ELECTROLUX mark is well-known and that it has exclusive rights to use of the mark worldwide, in relation to any product or use whatsoever. Complainant alleges that the disputed domain name is confusingly similar to Complainant's mark and that Respondent intentionally chose the disputed domain name based on its trademark to generate traffic to the web site and generate income for Respondent.
Complainant contends that Respondent became owner of the disputed domain name in August 2008, after the vast majority of registrations for the ELECTROLUX mark were completed.3 Complainant avers that Respondent has no connection with Complainant, and that Complainant has neither licensed, nor otherwise authorized Respondent to use the trademark ELECTROLUX. Complainant contends, therefore, that Respondent has no legitimate interest and his use of the disputed domain name cannot create a legitimate interest or be considered as bona fide, citing, among other cases, Guerlain S.A. v. Peikang,WIPO Case No. D2000-0055; Akbank v. Dr. Mehmet Kahveci,WIPO Case No. D2001-1488; and Citigroup Inc., Citicorp and Citibank, N.A. v. Ghinwa and Gaiia and Faouzi Kh,WIPO Case No. D2003-0494.
Contending that Respondent registered and is using the disputed domain name in bad faith, Complainant notes that its mark ELECTROLUX has the status of a well-known trademark throughout the world, therefore the value and goodwill associated with the mark ELECTROLUX could not have been unknown to Respondent. The circumstances alone, Complainant alleges, strongly suggest that the disputed domain name was registered in bad faith.
Complainant avers that it first became aware of Respondent's registration in September 2008, and that the disputed domain name is connected to a web site with sponsored links, many of them connected to Electrolux and its products. Complainant avers that it sent cease and desist letters by post and email to the WhoIs listed contact for the registrant and that the email address appears incorrect since Complainant's email received a bounce-back. Complainant, in its communications, advised Respondent that the use of its trademark was unauthorized, and requested immediate transfer of the disputed domain name, offering compensation not to exceed out of pocket expenses of Respondent. Complainant sent a reminder by post on October 6, 2008 and received no responses to any of the communications.
Complaint contends that the disputed domain name is currently connected to a web site containing sponsored links, and Respondent is using the domain name to intentionally attempt to attract, for commercial gain, Internet users to his web site, by creating a likelihood of confusion with Complainant's marks as to the source, sponsorship, affiliation or endorsement of its web site. Complainant therefore concludes that the Panel should find bad faith, whether or not Respondent has influenced what links should be included on the site.
On the basis of the above, Complainant seeks transfer of the disputed domain name. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings A. Notification of Proceedings to Respondent
The Policy is intended to resolve disputes concerning allegations of abusive domain name registration or acquisition, in an efficient manner. Fundamental due process requirements must nonetheless be met. The requirement that a respondent have notice of proceedings that may substantially affect its rights is such a fundamental requirement. The Policy and the Rules establish procedures to assure that respondents receive adequate notice of proceedings commenced against them, and a reasonable opportunity to respond (see, e.g., paragraph 2(a) of the Rules).
The Center notified the proceedings to Respondent by using a courier service, directed to the address listed in the WhoIs record for the disputed domain name. The courier package was delivered according to the UPS tracking summary page. The Center also notified Respondent by using an email address provided by the Registrar in its verification response to the Center.
The Panel is satisfied that by sending communications to the contacts made available through the registrar, and those provided by the registrant to the Registrar as listed in the WhoIs records, the Center has exercised care and has fulfilled its responsibility under paragraph 2 of the Rules to employ all reasonably available means to serve actual notice of the Complaint upon Respondent.
Another procedural issue was considered by the Panel as follows: the Complaint attaches a Power of Attorney to “Melbourne IT Corporate Brand Services” from Complainant to act before the Center in respect of domain name proceedings, while the body of the complaint describes Complainant's representative in this proceeding as “Melbourne IT Digital Brand Services”. Both Melbourne entities apparently share the same address in Sweden. The Panel finds that permitting the proceeding to go forward despite this small discrepancy is unlikely to result in prejudice to Respondent. B. Substance of the Complaint and Applicable Standards
The Rules require the Panel to decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Rules, paragraph 15(a). Complainant must establish each element of paragraph 4(a) of the Policy, namely:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Complainant must establish these elements even if respondent does not reply. The Vanguard Group, Inc. v. Lorna Kang,WIPO Case No. D2002-1064. In the absence of a Reply, the Panel may also accept as true the factual allegations in the Complaint. E.g., ThyssenKrupp USA, Inc. v. Richard Giardini,WIPO Case No. D2001-1425 (citing Talk City, Inc. v. Michael Robertson,WIPO Case No. D2000-0009). C. Identical or Confusingly Similar
Although the disputed domain name is not identical to Complainant's trademark, the Panel agrees with Complainant that Respondent's domain name is confusingly similar.
Panels disregard the domain name suffix in evaluating confusing similarity. E.g., VAT Holding AG v. VAT.com,WIPO Case No. D2000-0607; Shangri-La International Hotel Management Limited v. NetIncome Ventures Inc.,WIPO Case No. D2006-1315.
Removing the suffix, the disputed domain name is almost identical to Complainant's trademarks. The fact that Respondent's domain name lacks a single letter “c” which is present in Complainant's ELECTROLUX mark does not change the Panel's conclusion that the domain name is confusingly similar to Complainant's trademarks.
Respondent's disputed domain name and Complainant's trademark are similar both in appearance and phonetically.
The Panel believes that Complainant's trademark was intentionally misspelled by Respondent in order to attract the flow of Internet users who have mistyped Complainant's URL address and to increase traffic to its web site. Such “typosquatting” has regularly been condemned by UDRP panels. E.g., Nasdaq Stock Market, Inc. v. N, N and N, WIPO Case No. D2001-1492 cited in Volvo Trademark Holding AB v. Unasi, Inc., WIPO Case No. D2005-0556; Verisign, Inc. v. Onlinemalls,WIPO Case No. D2000-1446.
The Panel finds, therefore, that the disputed domain name is confusingly similar to Complainant's registered trademark and that the requirements in paragraph 4(a)(i) of the Policy are fulfilled. D. Rights or Legitimate Interests
The Panel also concludes that Respondent has no rights or legitimate interests in the domain name.
The Policy contains a non-exhaustive list of circumstances that may demonstrate when a respondent has rights or legitimate interests in the use of a domain name. The list includes: (1) using the domain name in connection with a bona fide offering of goods and services; (2) being commonly known by the domain name; or (3) making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers. Policy, paragraphs 4(c)(i)(iii).
A complainant must show a prima facie case that a respondent lacks rights or legitimate interests in a disputed domain name, after which the burden of rebuttal passes to respondent. See, e.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455. The absence of rights or legitimate interests may often be established if a complainant makes out a prima facie case and respondent enters no response. Id, (citing De Agostini S.p.A. v. Marco Cialone,WIPO Case No. DTV2002-0005).
Based on exhibits accompanying the Complaint, Respondent's web site presently appears to offer sponsored link advertising.4 Respondent's web site also listed links to web sites promoting the products of Complainant's competitors. By diverting traffic to third parties' web sites using paid link advertisements, the Panel finds that Respondent is using Complainant's marks for its own commercial purposes. See, e.g., The Bear Stearns Companies Inc. v. Darryl Pope, WIPO Case No. D2007-0593 (“[t]he Panel is free to infer that Respondent is likely receiving some pecuniary benefit in consideration of directing traffic to that site” (citing COMSAT Corporation v. Ronald Isaacs, WIPO Case No. D2004-1082)). See also Fat Face Holdings Ltd v. Belize Domain WHOIS Service Lt, WIPO Case No. D2007-0626; Sanofi-aventis v. Montanya ILtd, WIPO Case No. D2006-1079.5
In the absence of a response, the Panel accepts as true Complainant's allegations that Respondent has no authorization to use the ELECTROLUX mark in its domain name and that Respondent is not commonly known by the disputed domain name. Respondent is seeking to attract Internet users through Complainant's widely known marks, for Respondent's own commercial purposes.
The Panel therefore finds that Respondent's use of the disputed domain name demonstrates Respondent's lack of a legitimate non-commercial interest in, or fair use of, the disputed domain name. See e.g., Pfizer Inc. v. jg a/k/a Josh Green,WIPO Case No. D2004-0784. The Panel also finds there is no bona fide offering of goods or services by Respondent and that the Complaint makes out a prima facie case.
Filing no response, Respondent has not rebutted Complainant's prima facie case or invoked any of the circumstances of paragraph 4(c) of the Policy to support the existence of its “rights or legitimate interests” in use of the disputed domain name.
Accordingly, the Panel concludes that paragraph 4(a)(ii) of the Policy is satisfied. E. Registered and Used in Bad Faith
The Panel finds that the third element of paragraph 4(a) of the Policy, bad faith registration and bad faith use, is also established.
Using a domain name to intentionally attract Internet users, for commercial gain, by creating a likelihood of confusion, may be evidence of bad faith registration and use. Policy, paragraph 4(b)(iv). See, e.g., L´Oréal, Biotherm, Lancôme Parfums et Beauté & Cie v. Unasi, Inc,WIPO Case No. D2005-0623. Panels may draw inferences about bad faith registration or use in light of the circumstances, including a respondent's concealment of identity or failure to reply to a complaint. Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003.
The Panel infers that Respondent acquired the disputed domain name intending to trade on the reputation of Complainant's widely known trademarks. Complainant's ELECTROLUX mark was registered internationally and widely used to market products and services similar to those offered on Respondent's web site for decades before the disputed domain name was registered and acquired by Respondent. It is unlikely Respondent was unaware of the existence of Complainant's trademarks. See British Sky Broadcasting Group plc. v. Mr. Pablo Merino and Sky Services S.A.,WIPO Case No. D2004-0131 (“It is reasonable to conclude that only someone who was familiar with the Complainant's mark would have registered identical domain names”). Such an inference is particularly appropriate in cases of typosquatting. Volvo Trademark Holding AB, supra.
The Panel finds, therefore, that Respondent has deliberately attempted to attract Internet users to its web site for commercial gain, by creating a likelihood of confusion with Complainant's mark. This constitutes substantial evidence that the disputed domain name was registered and is being used in bad faith.
Other circumstances also support the Panel's conclusion that Respondent registered and is using the disputed domain name in bad faith. For instance, the sponsored links on the web site, which were shown in the screen prints made on October 27, 2008, (Complaint, Annex 8) direct users to web sites of competitors of Complainant, apparently without authorization or rights or legitimate interests in using the confusingly similar domain name in such a manner. See, e.g., Nikon, Inc and Nikon Corporation v. Technilab, Inc,WIPO Case No. D2000-1774 (use of domain name for site selling Nikon products and those of its competitors was improper use of complainant's mark to attract Internet users to respondent's site for commercial gain by creating a likelihood of confusion as to source, sponsorship, affiliation or endorsement of site).
Finally, Respondent has chosen to refrain from responding to the Complaint. Such circumstances taken together support an inference of bad faith use.
The disputed domain name was registered on August 24, 2000. Complainant alleges, without rebuttal by Respondent, that the disputed domain name was transferred to Respondent in August 2008. Under the circumstances, this Panel finds that the domain name was not only used in bad faith, but that Respondent also acquired the domain name in bad faith.
In the absence of a response from Respondent, this Panel must conclude on the record before it that Respondent has registered and is using the disputed domain name in bad faith and that paragraph 4(a)(iii) of the Policy is also satisfied. 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, be transferred to Complainant.
Nasser A. Khasawneh
Sole Panelist
Dated: December 19, 2008
1 The Panel has undertaken limited research by visiting archives of the web pages. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions.
2 Complainant's Annex 8 shows a screen print from October 27, 2008, displaying sponsored links to competitors which are predominantly written in Swedish. When the Panel later accessed Respondent's web page from a predominantly English-speaking location, the links were in English and referred only to ELECTROLUX parts, services, and replacement products.
3 Complainant provides no proof in support of either assertion here. However, in its annexes to the Complaint, Complainant provides lists of hundreds of its trademark registrations (without identifying the relevant dates or classes), and hundreds of its domain name registrations (without providing dates).
4 Complaint, Annex 8. The Panel has also viewed Respondent's web site and this confirms that Respondent is using sponsored advertising links on the web site.
5 The Panel also agrees with Complainant's suggestion that the fact that while the selection of sponsored links may be chosen by others than Respondent, Respondent nonetheless bears responsibility if they constitute a commercial use of the disputed domain name.
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