WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Aktiebolaget Electrolux AB v. Domains by Proxy, Inc. / HSD LLC, Thomas Keith Case No. D2010-0561 1. The Parties
The Complainant is Aktiebolaget Electrolux AB of Stockholm, Sweden, represented by Melbourne IT Digital Brand Services, Sweden.
The Respondent is Domains by Proxy, Inc. / HSD LLC, Thomas Keith of Glenside, Pennsylvania, United States of America. 2. The Domain Names and Registrar
The disputed domain names and (the “Domain Names”) are registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 14, 2010. On April 14, 2010, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the Domain Names. On April 15, 2010, 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 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 April 19, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was May 9, 2010.
The Respondent did not submit any Response. Accordingly, the Center notified the Respondent's default on May 10, 2010.
The Center appointed Arne Ringnes as the sole panelist in this matter on May 20, 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. 4. Factual Background
The Complainant is a Swedish joint stock company founded in 1901 and registered as a Swedish company in 1919, cf. Annex 8 of the Complaint.
According to Annex 6 of the Complaint the Complainant has registered the trademark ELECTROLUX as a word and figure mark in more than 150 countries. The Complainant has also registered the trademark as a domain name under almost 700 generic top-level domains (gTLDs) and country code top-level domains (ccTLDs) worldwide, among these; , , and .
According to the WhoIs information in Annex 2 of the Complaint the Domain Names and were both registered December 4, 2009. 5. Parties' Contentions A. Complainant
The Complainant submits that the Domain Names are identical or confusingly similar to the Complainant's registered trademarks.
It is alleged that the Domain Names contain the word “Electrolux”, which is identical to the registered trademark ELECTROLUX. The fame of the trademark has been confirmed in previous UDPR decisions, for example AB Electrolux v. Ilgaz Fatih Micik,WIPO Case No. D2009-0777.
The addition of the prefix “theoriginal” is not relevant and will not have any impact on the overall impression of the dominant part of the name, ELECTROLUX, instantly recognizable as a well-known trademark.
The addition of the top-level domains “.org” and “.net” do not have any impact on the overall impression of the dominant portion of the Domain Names and are therefore irrelevant to determine the confusing similarity of the trademark.
With reference to the reputation of the trademark ELECTROLUX there is a considerable risk that the trade public will perceive the Domain Names either as owned by the Complainant or that there is some kind of commercial relation with the Complainant.
The Complainant further submits that the Respondent has no rights or legitimate interests in respect of the Domain Names. The Complainant has not found that the Respondent has any registered trademarks or trade names corresponding to the Domain Names. No license or authorization of any other kind has been given by the Complainant to the Respondent to use the trademark. The Complainant has 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. The Respondent has never used the Domain Names in connection with a bona fide offering of goods or services. No evidence has been found that the Respondent uses the name ELECTROLUX as a company name or has any other right or legitimate interest in the name.
Further, the Complainant submits that the Domain Names were registered and are being used in bad faith. 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. There is no doubt that the Respondent was aware of the rights the Complainant has in the trademark ELECTROLUX and the value of said trademark, at the point of the registration. The Domain Names are currently connected to websites containing sponsored links, cf. Annex 10 of the Complaint. By using the Domain Names 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.
In accordance with paragraph 4(i) of the Policy the Complainant requests the Panel to issue a decision ordering that the Domain Names and be transferred to the Complainant. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Panel finds that the Complainant on basis of the trademark registrations listed in Annex 6 of the Complaint has rights to the trademark ELECTROLUX which the Panel notes precede the Respondent's registration of the Domain Names.
The Panel further finds that the Domain Names and are confusingly similar to the Complainant's trademark ELECTROLUX as it incorporates the trademark completely. The addition of the prefix “theoriginal” does not imply that the Domain Names are distinguished from the trademark with the effect that confusion is avoided. Obviously, neither does the addition of the top-level domains “.org” and “.net”.
In conclusion, the Panel finds that the Complainant has proved that the condition under the Policy, paragraph 4(a)(i) is fulfilled with respect to the Domain Names. B. Rights or Legitimate Interests
The Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in the Domain Names, which showing the Respondent has not rebutted.
The Respondent has not submitted any evidence supporting that the Respondent has rights or legitimate interests in respect of the Domain Names.
Neither has the Respondent proved that the Domain Names (i) have been used in a bona fide offering of goods or services; (ii) that it has been commonly known by the Domain Names; or (iii) that it has been making a legitimate noncommercial or fair use of the Domain Names, cf. paragraph 4(c) of the Policy.
The Panel cannot find any indications of circumstances that would constitute the Respondent's rights to or legitimate interests in the Domain Names pursuant to paragraph 4(c) of the Policy or any other circumstances indicating such rights or legitimate interests.
On this background the Panel concludes that the Respondent does not have any rights or legitimate interests in respect of the Domain Names, cf. paragraph 4(a)(ii). C. Registered and Used in Bad Faith
The Panel finds that in light of the present record it is unlikely that the registration of the Domain Names and was a coincidence. The Respondent has not substantiated any rights or legitimate interests in the Domain Names (cf. paragraph B above). The Domain Names are unusual and the Panel finds it unlikely that they have been registered or acquired without knowledge of the Complainant's trademark ELECTROLUX.
According to Annex 11 of the Complaint the Complainant tried to contact the Respondent on February 2, 2010 through a cease and desist letter, by email. No response was received even though two reminders were sent, the first one on March 10 and a final reminder on March 29, 2010. The Panel has in the consideration of bad faith taken notice of the failure of the Respondent to respond. In the evaluation of bad faith, the Panel also has taken into consideration that the Respondent's website includes “sponsored links” to websites offering goods and services related to Electrolux products, as well as a search tool for domain names for sale.
Based on the above, the Panel concludes that the Respondent has registered and used the Domain Name in bad faith, cf. paragraph 4(a)(iii). 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 Names, and be transferred to the Complainant.
Arne Ringnes
Sole Panelist
Dated: June 7, 2010
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