WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Aktiebolaget Electrolux AB v. Sun Qifeng Case No. D2010-0633 1. The Parties
The Complainant is Aktiebolaget Electrolux AB of Stockholm, Sweden represented by Melbourne IT Digital Brand Services, Sweden.
The Respondent is Sun Qifeng of Guangzhou, 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 April 21, 2010. On April 21, 2010, the Center transmitted by email to Xin Net Technology Corp. a request for registrar verification in connection with the disputed domain name. On April 22, 2010, 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. 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 29, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was May 19, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 21, 2010.
The Center appointed Linda Chang as the sole panelist in this matter on May 27, 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.
On June 14, 2010, the Panel issued its Panel Order No. 1 requesting the Complainant to supplement documents to show its trademark right in JUNO on its own and extended the Decision date to June 25, 2010. The Complainant made a response on June 15, 2010 attaching the CTM trademark registration data for JUNO ELECTROLUX No. 004368957. The Respondent responded on the same day contending that the CTM registration date was later than the domain name registration.
The Complaint was submitted in English. Pursuant to Rules, paragraph 11, in the absence of an agreement between the parties, or specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement, subject to the authority of the Panel to determine otherwise. According to information from the concerned Registrar, the language of the registration agreement for the disputed domain name is Chinese. On April 23, 2010, the Center transmitted an email to the parties in both Chinese and English with respect to the language of proceedings. The Complainant submitted a request that English be the language of proceedings, to which the Respondent objected on April 23, 2010. The disputed domain name resolves to a website with content in English and through previous correspondence between the Parties, it appears that the Respondent is familiar with the English language. The Complainant may be unduly disadvantaged by having to conduct the proceedings in Chinese. Furthermore, all communications from the Center to the parties have been transmitted in both Chinese and English. Given the provided submissions and circumstances of this case, the Panel chooses at its discretion to render the decision in English. 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 producer of appliances and equipment for kitchen and cleaning. Electrolux products include refrigerators, dishwashers, washing machines, vacuum cleaners and cookers sold under brands such as ELECTROLUX, AEG, AEG-ELECTROLUX, JUNO, ZANUSSI, EUREKA AND FRIGIDAIRE.
The Complainant owns the trademarks ELECTROLUX as a word and figurative mark in many countries around the world, as well as the CTM, JUNO ELECTROLUX, a figurative mark (registration number No. 004368957 with registration date February 12, 2009).
The Complainant sent an email to the Respondent on February 23, 2010, advising the Respondent that the unauthorized use of the ELECTROLUX trademark within the disputed domain name violated the Complainant's rights in the trademark. The Complainant requested a transfer of the disputed domain name and offered to reimburse the Respondent for the out-of-pocket expenses the registrar may charge for the transfer and the registration fee paid for the domain name. The Respondent replied back by email dated March 8, 2010 offering to sell the domain name for USD2,000. No further correspondence between the Parties on this matter is in the record.
The Respondent registered the disputed domain name on October 24, 2009. 5. Parties' Contentions A. Complainant The Disputed Domain Name Is Confusingly Similar to the Complainant's Mark
The Complainant contends that the disputed domain name is confusingly similar to the Complainant's registered trademarks JUNO and ELECTROLUX and asserts that a combination of two trademarks is confusingly similar. However the Complainant did not provide any registration number or documentation of registration from any trademark database showing the registration of the JUNO trademark. The Complainant also contends that given the reputation of the trademark ELECTROLUX the public may perceive the disputed domain name as owned by the Complainant or that there is some kind of commercial relation with the Complainant. The Complainant also contends that by using ELECTROLUX 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 Respondent Has No Rights Or Legitimate Interests in the Disputed Domain Name
The Complainant contends that the Respondent has no rights or legitimate interests with respect to the disputed domain name, nor is the Respondent connected with the Complainant in any way. The Complainant has not licensed nor has it given permission to the Respondent to use the trademarks in its domain name.
Moreover, the Complainant contends that the Respondent has no registered trademarks or trade names corresponding to the disputed domain name and that the Respondent may not claim any rights established by common usage and, thus, does not have any rights or legitimate interests in the disputed domain name on this basis.
The Complainant contends that the Respondent has not used the disputed domain name for a bona fide offering of goods or services, but has rather intentionally chosen a domain name based on the Complainant's registered trademarks in order to generate traffic to a website and through this procedure generate income through sponsored links related to Electrolux products or products from Electrolux's competitors. By doing this, the Complainant asserts that the Respondent is misleading Internet users to commercial websites and consequently, the Respondent is tarnishing the trademark ELECTROLUX. Registered and Used in Bad Faith
The Complainant contends that the trademark ELECTROLUX has been extensively used on products and services of the Complainant and tremendous costs have been incurred by the Complainant in connection with the production, distribution and advertising with respect to the products and services that are marked by the trademark. As a result the ELECTROLUX trademark has become well-known within the areas for appliances and equipment for kitchen, cleaning and outdoor products and is internationally recognized.
The Complainant contends that the mark ELECTROLUX is inherently distinctive and has also acquired substantial distinctiveness. Moreover, the Complainant contends that there is a significant awareness of the trademark ELECTROLUX in the European Community and throughout the world and the registrant is unlikely to have been unaware of the trademark at the time of registration or thereafter.
The Complainant contends that JUNO, the Complainant's oldest brand, which was established in 1899 and JUNO still retains its reputation for producing high quality cooking products throughout all of Europe. However, the record does not include further support for this contention.
The disputed domain name is currently connected to a website containing sponsored links. As such, the Complainant contends 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 the website.
The Complainant also contends that the Respondent is not making a legitimate non-commercial or fair use of the disputed domain name, but rather diverting consumers for the Respondent's own commercial gain. B. Respondent
The Respondent did not reply to the Complainant's contentions within the required time period. The only communications submitted by the Respondent are the email of April 23, 2010, the emails April 29, 2010 and the email of June 15, 2010. None of those communications did the Respondent specifically address the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complainant is the owner of the CTM JUNO ELECTROLUX, which was registered before the disputed domain name was registered. Compared to the Complainant's trademark, the disputed domain name completely reproduces the trademark. Given this registration and the complete reproduction of this mark in the disputed domain name, the disputed domain name is confusingly similar to the Complainant's trademark.
The Panel will not address the Complainant's contention that the disputed domain name is confusingly similar to the combination of its two separate trademarks JUNO and ELECTROLUX as the Complainant has not provided sufficient proof of its rights to JUNO. However, it has provided documentation of its CTM registration JUNO ELECTROLUX.
For the reasons stated above, the Panel holds that the disputed domain name is confusingly similar to the Complainant's trademark and the Complainant has met the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Complainant has made a prima facie showing of the Respondent's lack of rights or legitimate interest in the disputed domain name. There is nothing in the record to suggest the Respondent's use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services, to suggest that it has been commonly known by the disputed domain name, or to suggest that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name. Therefore, the burden shifts to the Respondent to prove otherwise. However, the Respondent has not responded to the Complainant's claims.
The Panel can only make its decision based on the information and evidence submitted before it and given the circumstances believes that the Respondent does not have any rights or legitimate interests in the disputed domain name.
The Panel is satisfied that the Complainant has met the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The disputed domain name is currently connected to a website containing sponsored links. Without any explanation to the contrary, it may be reasonable to conclude that the Respondent intends to attract, for commercial gain, Internet users to the website.
The record indicates that the Respondent may have acquired the domain name primarily for the purpose of selling the disputed domain name for valuable consideration as shown by its offer to sell the disputed domain name for USD2,000, an amount usually in excess of out-of-pocket costs directly related to acquiring a domain name. As the Respondent did not respond to the Complaint, there is nothing in the record to indicate that the Respondent did not acquire the domain name primarily for the purpose of selling the disputed domain name for valuable consideration in excess of the documented out-of-pocket costs directly related to the disputed domain name.
These circumstances lead the Panel to conclude that the Respondent's use and registration of the domain name fall within the circumstances of bad faith registration and use of domain names, as provided in 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 disputed domain name be transferred to the Complainant.
Linda Chang
Sole Panelist
Dated: June 25, 2010
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