WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Aktiebolaget Electrolux v. HSD LLC Case No. D2008-1746 1. The Parties
The Complainant is Aktiebolaget Electrolux, of Stockholm, Sweden, represented by Melbourne IT Corporate Brand Services AB, of Sweden.
The Respondent is HSD LLC, Glenside, of Pennsylvania, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 12, 2008. On November 12, 2008, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the disputed domain name. On November 12, 2008, GoD, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center sent an email communication to the Complainant on November 14, 2008 providing the correct information of the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on November 17, 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” 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 19, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was December 9, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 10, 2008.
The Center appointed Eduardo Machado as the sole panelist in this matter on December 18, 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, AB Electrolux, is a Swedish joint stock company founded in 1901 and registered as a Swedish company in 1919. AB Electrolux is one of the world's leading producers of appliances and equipment for kitchen and cleaning. Electrolux is also one of the largest producer in the world of similar equipment for professional users.
The Complainant has registered the trademark ELECTROLUX as a word mark in respect of appliances and equipment for kitchen, cleaning and outdoor products in several classes in more than 150 countries and several trademarks in each country. The Complainant has also registered the trademark ELECTROLUX as domain name in about 300 gTLDs and ccTLDs worldwide, among these; . Furthermore the mark is in possession of distinctiveness per se. The trademark ELECTROLUX is considered to be widely known. 5. Parties' Contentions A. Complainant
The Complainant asserts that the disputed domain name was registered by the Respondent on May 21, 2008 and that this date is subsequent to when the vast majority of the Complainant's trademarks for ELECTROLUX were registered.
The Complainant contends that the dominant part of the disputed domain name comprises the word “electrolux”, which is identical to the registered trademark ELECTROLUX, which has been registered by the Complainant as a trademark and domain name in numerous countries all over the world.
The Complainant also contends that there is a considerable risk that the trade public will perceive the disputed domain name either as a domain name owned by the Complainant or that there is some kind of commercial relation with the Complainant and that, by using the trademark as a dominant part of the disputed domain name, the Respondent exploits the goodwill and the image of the trademark, which may result in dilution and other damage for the Complainant's trademark.
The Complainant alleges that it has not found that the Respondent has any registered trademarks or trade names corresponding to the disputed domain name. The Complainant has also not found anything that would suggest that the Respondent has been using ELECTROLUX in any other way that would give him any legitimate rights in the name. Consequently the Respondent may not claim any rights established by common usage.
The Complainant states that no license or authorization of any other kind, has ever been given by the Complainant to the Respondent, to use the trademark ELECTROLUX.
The Complainant asserts that it is highly unlikely that the Respondent would not have known of the Complainant's legal rights in the name at the time of the registration and that it is rather the fame of the trademark that has motivated the Respondent to register the disputed domain name. That is, the Respondent cannot claim to have been using ELECTROLUX, without being aware of the Complainant's rights to it.
The Complainant contends that the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services. Instead the Respondent has intentionally chosen to register a domain name based on a registered trademark in order to generate traffic to the website and through this procedure generate income through sponsored links.
The Complainant asserts that the Respondent is using the disputed domain name to intentionally attempt to attract, for commercial gain, Internet users to the website by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of its website. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Pursuant to the Policy, the Complainant is required to prove the presence of each of the following three elements to obtain the relief it has requested: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the 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, Policy, paragraph 4(a). A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to the Complainant's ELECTROLUX trademarks. The disputed domain name differs from the Complainant's registered ELECTROLUX marks only in the addition of the generic term “cleaning”, which is not enough to characterize it as distinct from the Complainant's trademarks.
The Panel finds that the Complainant has established the first element of the Policy. B. Rights or Legitimate Interests
With respect to paragraph 4(c)(i) of the Policy, there is little evidence that the Respondent, before any notice of the dispute, used or prepared to use the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services.
With respect to paragraph 4(c)(ii) of the Policy, there is little evidence that indicates that the Respondent has ever been commonly known by the disputed domain name.
With respect to paragraph 4(c)(iii) of the Policy, the Respondent does not appear to have made and does not appear to be making a legitimate noncommercial or fair use of the disputed domain name and has not used the disputed domain name, or a name corresponding to it, in connection with a bona fide offering of goods or services.
A complainant is required to make out an initial prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. Morgan Freeman v. Mighty LLC,WIPO Case No. D2005-0263; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455; and Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110. The Respondent has defaulted and failed to provide a rebuttal to the Complainant's prima facie case that the Respondent lacks right or legitimate interests in the disputed domain name.
With respect to Policy 4(c)(ii), the Panel therefore does not consider that the Respondent has rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
Under paragraph 4(b) of the Policy, a respondent has used and registered a domain name in bad faith if, inter alia, the respondent has used the domain name intentionally to attempt to attract, for commercial gain, Internet users to the respondent's website or other online location by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation or endorsement of the respondent's site or of a product or service offered on the respondent's site. Policy, paragraph 4(b)(iv).
The Panel finds that the Respondent registered the disputed domain name in bad faith.
The Complainant's allegations of bad faith are not contested. The Complainant's trademark ELECTRLUX is widely known and, therefore, the Panel finds persuasive Complainant's allegation that the Respondent must have been aware of the Complainant's rights in the mark and, further that the Respondent was aware of the same when it registered the disputed domain name.
Under the Policy, it is evidence of bad faith that, “by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site 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 web site or location or of a product or service on your web site or location.” Policy, paragraph 4(b)(iv). The Respondent used the Complainant's widely known trademark to attract users to the Respondent's website where there are offered sponsored links. This is evidence of the intention by the Respondent to attract Internet users for commercial gain, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website or of a product or service on the Respondent's website.
As evidence of the above, the Panel notes that at the time the Complaint was filed and at the time this decision was issued, the disputed domain name resolved to a page that displayed advertisements related to the cleaning business.
Accordingly the Panel finds that the Complainant has made out bad faith registration and use of the disputed domain name by the Respondent. 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 the Complainant.
Eduardo Machado
Sole Panelist
Dated: January 1, 2009
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