WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Aktiebolaget Electrolux v. shang hai guang dian dian qi ji tuan gu fen you xian gong si Case No. D2009-1443 1. The Parties
The Complainant is Aktiebolaget Electrolux of Stockholm, Sweden, represented by Melbourne IT Digital Brand Services, Sweden.
The Respondent is shang hai guang dian dian qi ji tuan gu fen you xian gong si of Shanghai, the People's Republic of China. 2. The Domain Name and Registrar
The disputed domain name is registered with Xin Net Technology Corp. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 26, 2009. On October 27, 2009, the Center transmitted by email to Xin Net Technology Corp. a request for registrar verification in connection with the disputed Domain Name. On October 28, 2009, Xin Net Technology Corp. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On October 30, 2009, the Center transmitted an email to the parties in both Chinese and English regarding the language of proceedings. On November 2, 2009, the Complainant confirmed its request that English be the language of proceedings. The Respondent did not make submissions on the language of proceeding by the due date. 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 9, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was November 29, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 30, 2009.
The Center appointed Douglas Clark as the sole panelist in this matter on December 9, 2009. 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.
The Panel will deal with the issue of the language of proceedings in its substantive decision. 4. Factual Background
The Complainant is a Swedish joint stock company founded in 1901 and registered as a Swedish company in 1919. The Complainant is a global leader in home appliances and appliances for professional use, selling more than 40 million products to customers in 150 countries every year.
The Complainant has registered the trademark AEG as a word and device mark in several classes in countries all over the world. The trademark AEG was registered long before the registration of the disputed domain name. The Complainant has also registered the trademark AEG as a domain name under several gTLDs and ccTLDs worldwide, including , and . 5. Parties' Contentions A. Complainant
In accordance with paragraph 4(b)(i) of the Policy, the Complainant requests that the disputed domain name be transferred to the Complainant.
The Complainant submits that the grounds for these proceeding are listed in paragraph 4(a) of the Policy. Identical or Confusingly Similar
The Complainant contends that the disputed domain name is identical or confusingly similar to the Complainant's world-wide trademark AEG.
The Complainant states that the addition of the suffix “powercontrol” is not relevant and will not have an impact on the overall impression of the dominant part of the name, AEG, instantly recognizable as a world famous trademark. In Dr. Ing. h.c. F. Porsche AG v. Rojeen Rayaneh,WIPO Case No. D2004-0488 it was stated that it is a long-established precedent that confusing similarity is generally recognized when well-known trademarks are paired with different generic prefixes and suffixes. In Vodafone Group, Plc v. Phone-Express, WIPO Case No. D2004-0505 the Panel accepted the Complainant's allegations that the addition of a generic term to a trade or service mark is legally inconsequential and does not prevent a finding of confusing similarity. Furthermore, in PRL USA Holdings, Inc. v. Spiral Matrix,WIPO Case No. D2006-0189, the Panel confirmed this“ the mere addition of a generic or descriptive term does not exclude the likelihood of confusion”.
The Complainant states that the addition of the top-level domain (tld) “.com” does not have any impact on the overall impression of the dominant portion of the disputed domain name and is therefore irrelevant in determining confusing similarity to the trademarks.
The Complainant asserts that anyone who sees the disputed domain name is bound to mistake it for a name related to the Complainant. Rights or Legitimate Interests
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant states that it has not found that the Respondent has any registered trademarks or trade names corresponding to the disputed domain name. The Complainant also states that no license or authorization of any other kind has been given by the Complainant to the Respondent, to use the trademark.
The Complainant asserts that the Respondent is today not using the disputed domain name in connection with a bona fide offering of goods or services. In this case the Respondent has intentionally chosen a domain name based on a registered trademark in order to generate traffic to its company's website, claiming to be an official AEG company. The site displays information and a historical background of AEG and its products. The Respondent also allegedly lists the disputed domain name as the official web address for AEG in China, which the Complainant asserts is false. Registered and Used in Bad Faith
The Complainant states that it tried to contact the Respondent to request a voluntary transfer of the disputed domain name and offer compensation for the expenses of registration and transfer fees through a cease and desist letter, and a subsequent reminder letter. No response was received from the Respondent.
The Complainant asserts that the disputed domain name is currently connected to a website claiming to be AEG in China, where facts about AEG and products from AEG are displayed. The site has the look and feel of an official AEG site, displaying unauthorized use of AEG logotypes. Consequently, 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.
The Complainant states that since the Respondent uses the brand and logotype of AEG on the website of its company, it is obvious that it is well aware of the trademark AEG.
The Complainant notes that by using the disputed domain name, the Respondent is not making a legitimate non commercial or fair use without intent for commercial gain but is misleadingly diverting consumers for its own commercial gain. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings 6.1 Language of the Proceedings
The domain name registration agreement being in Chinese, pursuant to Rules, paragraph 11, unless otherwise agreed by the parties, or specified otherwise in the Registration Agreement, the language of the administrative proceedings shall be the language of the Registration Agreement, i.e. the default language of the proceedings shall be Chinese. However, the Complainant submitted request for English to be the language of the proceedings along with the Complaint.
Below is a summary of the Complainant's arguments on the issue of the language of proceedings:
a. The Complainant has sent the cease and desist letter in English, and the Respondent has never taken the trouble to answer, neither to reply to the issues raised in the letter, nor to state that it does not understand the content.
b. On the website connected to the disputed domain name, there is a link indicating that there is an English version of the website.
c. On the website connected to the disputed domain name, there is an English text “Share more of our thinking”.
d. The Respondent's email address is made up of the English terms “money” and “sir”.
e. It would be cumbersome and to the Complainant's disadvantage to be forced to translate the entire Complaint into Chinese.
f. The Respondent has ignored all attempts to solve this issue amicably.
The Complainant requests that the proceedings be held in English, or, secondly, if the Panel does not agree to hold the entire proceedings in English, that the Complainant be allowed to submit its documentation in English (while the Respondent may still file in Chinese).
Before considering this matter further, the Panel notes that in its opinion, point (a) above is irrelevant. It is hard to see how a letter from one party sent in any language which was not responded to can assist to establish a language of correspondence between the parties.
Pursuant to paragraph 11 of the Rules, the Panel is granted the power to determine the language of proceedings, having regard to the circumstances of the case. This Panel stated in Z, Inc. v. Zufu aka Huahaotrade,WIPO Case No. D2008-1191 that “[o]ne important consideration of this issue is the fairness to both parties in their abilities to prepare the necessary documents and protect their own interests”.
The Center has provided both parties with an opportunity to comment on the language of the proceedings by sending both parties a consolidated Language of Proceeding notification. The Complainant has provided submissions regarding the proper language of proceedings, while the Respondent did not raise any objection or reply thereto. This Panel concluded in the Z, Inc. cited above:
“A Respondent's failure to respond to these notices should, in general, be a strong factor to allow the Panel to decide to proceed in favour of the language of the Complaint [. . .] a clear default by a Respondent who has been informed in their own language of the proceedings, and of the preliminary acceptance of the Complaint in a particular language, would certainly be a strong factor in support of a Panel subsequently determining that there should be consistency between the language of the Complaint as originally accepted and the language of proceedings as ultimately determined by the Panel [. . .] a default by the Respondent after having been notified of the proceedings and being requested to comment or object to the language request should be a strong factor for the Panel to proceed in line with the Center's decision on language.”
In this case, the Panel notes that there is a link on the website the disputed domain name resolves to indicate that there is an English version of the website, although it appears that the English version of the website does not exist. Further, there is an English slogan “Share more of our thinking” on the website. This suggests that the Respondent plans to have an English language website and is at least competent in English.
Considering that both parties have been given fair opportunities to present their cases and the Respondent has been given an opportunity to object to the proceedings being conducted in English but has not responded, the Panel finds that in the circumstances of this case, paragraph 11 of the Rules is best served by allowing the proceedings to be conducted in accordance with the Center's standard practice. If the Respondent had filed a response in Chinese, this would have been accepted. As the only pleading before the Panel is in English, the Panel will issue its decision in English. 6.2 Substantive Elements of the Policy
Under paragraph 4(a) of the Policy, the Complainant must prove the following:
(i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) The disputed domain name has been registered and is being used in bad faith.
Paragraph 15(a) of the Rules requires the Panel to “decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that [they deem] applicable”.
Where a respondent has not submitted a response, paragraph 5(e) of the Rules requires the Panel to “decide the dispute based on the complaint”. Under paragraph 14(b) of the Rules, the Panel may draw such inferences from a respondent's failure to comply with the Rules (e.g., by failing to file a response), as the Panel considers appropriate. A. Identical or Confusingly Similar
The Complainant has exclusive rights in the mark AEG and has provided evidence of this fact.
The disputed domain name consists of the Complainant's trademark, plus a hyphen, plus the term “powercontrol”, plus the “.com” suffix.
It is well-established that the specific top level of a domain name such as “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar. The hyphen also does nothing to avoid the confusion which is likely to arise from the strong similarity between the disputed domain name and the Complainant's AEG mark.
The Panel finds that adding the term “powercontrol” does not eliminate the similarity between the trademark and the disputed domain name as it merely describes the nature of the Complainant's products, which are switches and other power control devices. The Panel notes that the Respondent has put the Complainant's AEG trademark and logo on the website as well as the power control products, such as switches. On the evidence, the Panel accepts the contention that “the mere addition of a generic or descriptive term does not exclude the likelihood of confusion” as discussed in PRL USA Holdings, Inc. v. Spiral Matrix,WIPO Case No. D2006-0189.
Accordingly, the Panel finds that the disputed Domain Name is confusingly similar to a trademark or service mark in which the Complainant has rights. B. Rights or Legitimate Interests
According to paragraph 4(c) of the Policy, the Complainant has the burden of demonstrating the Respondent's lack of rights or legitimate interests.
In this case, the Complainant has offered meaningful explanations and has provided sufficient evidence of its exclusive rights and legitimate interests in the AEG trademark. The Complainant states that it has not authorized the Respondent to use its AEG mark, whether in a domain name or otherwise, and there is no evidence to the contrary. Nor is there any evidence of the disputed domain name having been used for a fair or legitimate noncommercial purpose, without intent for commercial gain.
Consequently, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
Paragraph 4(b)(iv) provides examples of circumstances which shall be evidence of registration and use in bad faith, which include “ by using the domain name, [the Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the Respondent's] 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 [the Respondent's] web site or location or of a product or service on [the Respondent's] web site or location”.
Given the widespread use and goodwill the Complainant's AEG mark it is inconceivable to the Panel that the Respondent was not aware of the Complainant and the Complainant's activities when registering the disputed domain name. The Panel therefore finds that, in the circumstances of this case, the disputed domain name was registered in bad faith.
Further, the Respondent has placed the Complainant's AEG mark and logo and products bearing the Complainant's trademark on the website and is seeking to sell these products through the website. The Complainant has not granted any license or permission to the Respondent to use the AEG mark. Thus, the Respondent is misleading Internet users by suggesting relationship with the Complainant that actually does not exist.
Accordingly, the Panel finds that the Respondent registered and is using the disputed 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 disputed domain name, be transferred to the Complainant.
Douglas Clark
Sole Panelist
Dated: December 21, 2009
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