WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION AB Electrolux v. Andre Felipe Andrade Case No. D2010-0837 1. The Parties
Complainant is AB Electrolux of Stockholm, Sweden, represented by Melbourne IT Digital Brand Services, Sweden.
Respondent is Andre Felipe Andrade of Sao Paulo, Brazil. 2. The Domain Name and Registrar
The disputed domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 25, 2010. On May 25, 2010, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR a request for registrar verification in connection with the disputed domain name. On May 26, 2010, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR transmitted by email to the Center its verification response confirming that 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. The Center provided the panelist in this case with a documentary receipt whereby Respondent personally signed for the courier package containing the Complaint and related information on June 4, 2010. The proceedings commenced on May 31, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was June 20, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on June 21, 2010.
The Center appointed Paul E. Mason as the sole panelist in this matter on June 23, 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 the question of the language governing this administrative proceeding, the Registrar's response to question 8 of the Center's formal request to the Registrar indicates the language of the Registration Agreement entered into by Respondent is English, meaning that under applicable UDRP rules, this same language shall be the language of this administrative proceeding. This is important to note, since the Respondent is Brazilian and his website against which Complainant stakes its claim is in Portuguese. 4. Factual Background
According to Annex 6 to the Complaint, Electrolux has registered and been using in commerce around the world a large variety of trademarks since the early 1970s in connection with its kitchen and household appliance products. 5. Parties' Contentions A. Complainant
Complainant contends that: 1. Similarity of domain name to Complainant's mark:
a) Electrolux is a company with multimillion dollar sales and leadership in the home appliance industry worldwide. It has been such a widely known brand for so many years that it enjoys the status of a “famous mark”. As such, there is no need to prove that Respondent's domain name applied to a different sphere of business activities.
b. The domain name's suffix “capital” has no legal effect to change the fact that the domain name is confusingly similar to Complainant's famous mark. 2. No rights or legitimate interests
Complainant asserts that it has granted no right, license or other form of interest to Respondent to justify his using of the domain name containing Complainant's famous mark. 3. Bad faith
Complainant contends that registration of a the domain name containing such a famous mark must be in bad faith. Bad faith use is also shown because the domain name resolves to a website where servicing of electric appliances is being advertised and marketed. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Panel finds that Electrolux is indeed a “household word” and mark with such widespread notoriety that it would be nearly impossible for Respondent not to have known this. Further, as indicated below, Respondent must have known because the website to which this domain name resolves advertises, in Portuguese, repairing and related services for home appliances in Brazil. Furthermore, an annex to the Complaint shows registration in Brazil of at least seven ELECTROLUX related marks.
The Panel also finds that adding a generic suffix like “capital” to the domain name does nothing to change the notoriety of the mark or the domain name's similarity to the mark. On the contrary, it can sometimes increase the confusion of the user as to the origin of the services or goods in question, indicating possible bad faith.
Likewise, the domain name identifier “.com” does nothing to alter the confusing similarity between the domain name and Complainant's mark, as has been decided in many UDRP cases.
The Panel agrees with the finding in UDRP decision AB Electrolux v. Ilgaz Fatih Micik,WIPO Case No. D2009-0777, where the panel found that:
“…Respondent's inclusion of two of Complainant's trademarks in the same domain name increases the likelihood that Internet users would be confused and associate the disputed domain name with Complainant. The Panel further finds that Respondent's addition of the generic term “service” does not reduce that confusion. E.g., Sanofi-aventis, Sanofi-Aventis Deutschland GmbH v. Andrey Mitrofanov,WIPO Case No. D2007-1772; Giata Gesellschaft für die Entwicklung und Vermarktung interaktiver Tourismusanwendungen mbH v. Keyword Marketing, Inc.,WIPO Case No. D2006-1137; Hoffmann-La Roche Inc. v. Aneko Bohner,WIPO Case No. D2006-0629.” B. Rights or Legitimate Interests
The Complainant has met his burden of persuasion on this element by alleging that it has granted no license, right or interest to Respondent in the domain name. Respondent did not reply with any positive assertion of right or legitimate interest, and the Panel finds it has no such interests. C. Registered and Used in Bad Faith
The fact that the mark ELECTROLUX is so well-known around the world strongly indicates that a registration of a confusingly similar domain name would be conducted in bad faith, unless authorized by Complainant which was not the case here. According to Annex 6 to the Complaint showing worldwide registrations of the mark ELECTROLUX, there were at least seven such registrations of the mark in Brazil where Respondent resides. Therefore the Panel finds bad faith registration of the domain name by Respondent.
The essence of bad faith use of a domain name is “Using domain names to intentionally attract Internet users, for commercial gain, by creating a likelihood of confusion… Policy, paragraph 4(b)(iv)”
Another Annex to the Complaint shows screenshots dated May 31, 2010 of the website “www.” which derives from the domain name. These web pages in Portuguese promote repair and related services of Electrolux appliances in the greater São Paulo area.
A visit by this Panelist on June 24, 2010 to the same website yielded a notice in Portuguese that “This account is suspended” along with a phone number in São Paulo of a company called VisãoMarket (Market Vision in English) which apparently deals with Internet marketing services.
There was no disclaimer on Respondent's site disassociating itself from Complainant's name or mark. Rather, there is a posting at the bottom of the last page stating that “ELECTROLUX CAPITAL is proudly associated with the CriaStore” followed by a local phone number.
These facts combined with Respondent's failure to answer the Complaint after having personally received a copy by courier, all point to bad faith registration and use of the domain name. 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.
Paul E. Mason
Sole Panelist
Dated: June 24, 2010
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