WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Aktiebolaget Electrolux v. Serbay Narin Case No. D2009-1444 1. The Parties
The Complainant is Aktiebolaget Electrolux of Stockholm, Sweden, represented by Melbourne IT Digital Brand Services, Sweden.
The Respondent is Serbay Narin of Istanbul, Turkey. 2. The Domain Name and Registrar
The disputed domain name is registered with IHS Telekom, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 26, 2009. On October 26, 2009, the Center transmitted by email to IHS Telekom, Inc. a request for registrar verification in connection with the disputed domain name. On October 27, 2009, IHS Telekom, 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 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 24, 2009.
On December 08, 2009, the Complainant filed a request of suspension of the proceeding due to the Respondent having agreed to transfer the domain name to the Complainant. On December 10, 2009 the Center sent to the parties the notification of Suspension of proceeding.
On January 15, 2010 the Complainant filed a request of extended suspension of the dispute because the Respondent had not yet provided the Complainant with the authorization code.
On March 12, 2010 the Complainant filed a request to re-institute the proceeding in the case.
In accordance with the Rules, paragraph 5(a), the due date for Response was March 20, 2010. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent's default on March 23, 2010.
The Center appointed Dilek Ustun as the sole panelist in this matter on March 31, 2010. 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. In accordance with paragraph 11 of the Rules, the Panel has determined the language of proceedings as English, taking account of the circumstances of the case, specifically that the Respondent did not object to the Complainant's language request, and that the disputed domain name displays some English. As such, the Panel does not find that any prejudice would occur if the language of proceedings were to be English and in light of the specifics of this case is indeed appropriate. 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 a world leading producer of appliances and equipment for kitchen and cleaning. Electrolux is also one of the largest producers in the world of similar equipment for professional users. In addition, they are the market leader in many of the individual product categories in which they compete.
Electrolux products include refrigerators, dishwashers, washing machines, vacuum cleaners and cookers sold under esteemed brands such as ELECTROLUX, AEG, AEG-ELECTROLUX, ZANUSSI, EUREKA and FRIGIDAIRE. In 2008, Electrolux had sales of SEK 105 billion and 55,150 employees.
The Complainant has registered the trademark ELECTROLUX as a word and figure mark in several classes in more than 150 countries all over the world. The trademark ELECTROLUX was registered long before the registration of the disputed domain name. The Complainant has also registered the trademark ELECTROLUX as a domain name under almost 700 gTLDs and ccTLDs worldwide. 5. Parties' Contentions A. Complainant
According to the Complainant, the dominant part of the disputed domain name comprises the word “electrolux”, which is confusingly similar as well as identical to the registered trademark ELECTROLUX, which has been registered by the Complainant as a trademark and domain names in numerous countries all over the world.
The addition of the suffix “beyazesyaservisi” is not relevant and will not have any impact on the overall impression of the dominant part of the disputed domain name, ELECTROLUX, instantly recognizable as a world famous trademark. As Complainant and its trademark is widely known for conducting business with home appliances, said suffix is rather fitted to strengthen the impression that the disputed domain name belongs to, or is affiliated with Complainant. The Turkish term “beyaz esya” is generally translated into “electronic household goods” and “servisi” is the Turkish word for “service”.
The Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant has not found that the Respondent has any registered trademarks or trade names corresponding to the disputed domain name. It is also clear, that no license or authorization of any other kind, has been given by the Complainant to the Respondent, to use the trademark.
The Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services.
The trademark ELECTROLUX belonging to the Complainant has the status of a well-known and reputed trademark with a substantial and widespread reputation throughout the whole Community and throughout the world. The awareness of the trademark is to be considered, in the whole Community in general, to be significant and substantial. The number of third party domain name registrations comprising the trademark in combination with other words has skyrocketed the last years. The considerable value and goodwill of the mark ELECTROLUX, is most likely, a large contribution to this and also what made the Respondent register the disputed domain name here.
The disputed domain name is connected to a service company's website, where facts about goods from ELECTROLUX and other brands are displayed. Therefore the Complainant stated 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.
The Complainant also states that by using the disputed domain name the Respondent is not making a legitimate noncommercial or fair use without intent for commercial gain but is misleadingly diverting consumers for his own commercial gain. Consequently, the Respondent must be considered to have registered and be using the disputed domain name in bad faith. B. Respondent
The Respondent did not submit a formal Response.
However, the Respondent did submit an email communication in Turkish on March 20, 2010, stating:
“İyi günler zaten bu domain kapalı konumda her hangi bir şekilde kullanılmıyor bu domaini alabilirsiniz ve bana bir sorun oluşturmasını istemiyorum” .-“Good Day, the disputed domain name is already closed and not been used, so you can take the domain name at any time and I do not want any trouble with it.”
And on March 23, 2010 he repeated his first statement in Turkish.
Lastly, on April 1, 2010 he submitted one more email communication stating: “Domaini alabilirsiniz sorun yaşamak istemiyorum lütfen”. - “You can take the domain name I do not want any trouble.” 6. Discussion and Findings
Paragraph 15(a) of the Rules requires the Panel to decide a Complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
Under paragraph 4(a) of the Policy, the Complainant bears the burden of showing:
(i) that the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) that the domain name has been registered and is being used by the Respondent in bad faith. A. Identical or Confusingly Similar
The Complainant has registered the trademark ELECTROLUX as a word and figure mark in several classes in more than 150 countries all over the world. The trademark ELECTROLUX was registered long before the registration of the disputed domain name. The Complainant has also registered the trademark ELECTROLUX as a domain name under almost 700 gTLDs and ccTLDs worldwide, among these; (registered by Electrolux Turkey), .
The Panel concurs with the opinion of several prior UDRP panels which have held that, when a domain name wholly incorporates a complainant's registered mark that may be sufficient to establish confusing similarity for purposes of the Policy. See, e.g., Kabushiki Kaisha Hitachi Seisakusho (d/b/a Hitachi Ltd) v. Arthur Wrangle, WIPO Case No. D2005-1105; Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903; Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr.,WIPO Case No. D2000-1525; Eauto, L.L.C. v. Triple S. Auto Parts d/b/a Kung Fu Yea Enterprises, Inc.,WIPO Case No. D2000-0047; Bayerische Motoren Werke AG v. ,WIPO Case No. D2002-0615.
Finally, Respondent has brought no argument in support of his contention that the disputed domain name is not identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
Therefore, the Panel finds that the requirement of paragraph 4(a)(i) of the Policy is met. B. Rights or Legitimate Interests
The Respondent has not provided any evidence of the type specified in paragraph 4(c) of the Policy, or any other circumstances giving rise to a right or legitimate interests in the disputed domain name. It is clear that the Respondent has not demonstrated any bona fide offering of goods and services by its using the disputed domain name. Nor has the Respondent shown that it has been commonly known by the disputed domain name. The Complainant showed that the Respondent has neither a license nor any other permission to use the disputed domain name. The Panel finds that the Complainant has made a prima facie case that the Respondent lacks right or legitimate interests, and the Respondent has failed to demonstrate such rights or legitimate interests. The Panel finds that given the use made of the disputed domain name, when the Respondent registered the disputed domain name it knew that ELECTROLUX was the trademark of the Complainant. It registered the disputed domain name because it would be recognized as such.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the domain name. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a list of indicative circumstances that suggest bad faith registration, however, such list is not exhaustive and a finding of bad faith depends on the circumstances of each case.
Based on the circumstances, in the Panel's view, it is reasonable to infer that when the Respondent registered the disputed domain name, he knew that the name was the trademark of the Complainant. The Panel, in accordance with previous decisions issued under the Policy, is of the opinion that this knowledge may be considered as both a precondition and in appropriate cases also an indication of bad faith (see Parfums Christian Dior v. Javier Garcia Quintas and C,WIPO Case No. D2000-0226).
The disputed domain name was connected to a service company's website, where facts about white goods from ELECTROLUX and other brands are displayed.
Thus it is obvious to this Panel that by using the disputed domain name, the Respondent intentionally attempts to attract for commercial gain, Internet users to the Respondent's website by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website. In view of the above, the Panel finds that the Respondent has registered and used the disputed domain name in bad faith, in accordance with paragraph 4(a)(iii) of the Policy. 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.
Dilek Ustun
Sole Panelist
Dated: April 16, 2010
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