The Complainant is Aktiebolaget Electrolux of Stockholm, Sweden, represented by Melbourne IT Digital Brand Services, Sweden.
The Respondent is Nomad Marketing Ltd of Vancouver, Canada. 2. The Domain Name(s) and Registrar(s)
The disputed domain name is registered with Netfirms, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 21, 2010. On July 21, 2010, the Center transmitted by email to Netfirms, Inc. a request for registrar verification in connection with the disputed domain name. On July 21, 2010, Netfirms, 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 July 27, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was August 16, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 17, 2010.
The Center appointed Richard Hill as the sole panelist in this matter on August 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. 4. Factual Background
The Complainant owns the well-known trademark ELECTROLUX.
The Respondent does not have any license or other authorization to use the Complainant’s mark or to sell its products.
The Respondent is using the disputed domain name to point to web sites offering for sale products that directly compete with Complainant’s branded products. The Respondent appears to obtain revenue from the referral links. 5. Parties’ Contentions A. Complainant
The Complainant alleges that it was founded in 1901 and is a world-leading producer of appliances and equipment for cooking and cleaning. It is also one of the largest producers in the world of similar equipment for professional users. In addition, it is the market leader in many of the individual product categories in which it competes.
The Complainant states that it has registered the trademark ELECTROLUX as a word and figure mark in several classes in more than 150 countries all over the world. Thanks to extensive and long-term use around the world, that mark has become a well known mark in connection with kitchen appliances, washing machines, and related products.
According to the Complainant (who cites UDRP precedent to support its position), the disputed domain name is confusingly similar, in the sense of the Policy, to the Complainant’s mark.
Further, says the Complainant, the Respondent does not have any license or authorization to use the Complainant’s mark.
The Complainant states that the Respondent is using the disputed domain name to point to a web site containing sponsored links (including to products that directly compete with the Complainant’s products), together with some generic information about washing machines. Such use is not a bona fide use under the Policy. Consequently, the Respondent is using the disputed domain name to intentionally attempt to attract, for commercial gain, Internet users to the website at the disputed domain name, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the website. The Complainant cites UDRP precedents to conclude that the Respondent has violated the Policy.
The Complainant alleges that the Respondent has not replied to various communications from the Complainant, and that this is a further indication of the Respondent’s bad faith registration and use of the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
It is clear that the disputed domain name is confusingly similar (in the sense of the Policy) to the Complainant’s mark, because it contains the mark and merely adds the common term “washing machine” to form the domain name. See PACCAR, Inc. v. Enyart Associates and T, LLC, WIPO Case No. D2000-0289 (May 26, 2000); see also Quixtar Investments Inc. v. Dennis Hoffman, WIPO Case No. D2000-0253 (May 29, 2000).
The Panel holds that the Complainant has satisfied its burden of proof concerning this first element of the Policy. B. Rights or Legitimate Interests
The Respondent does not have any license or other authorization to use the Complainant’s mark. It is using the disputed domain name to operate a website that contains referrals to merchants offering the sale of various products and services, some of which directly compete with the Complainant’s products. The Respondent appears to obtain revenue from the referrals.
The Panel finds that the Respondent is redirecting Internet users interested in the Complainant’s products and services to its own website for commercial gain and that such use does not fall within the parameters of a bona fide offering of goods or services pursuant to paragraph 4(c)(i) of the Policy or a legitimate noncommercial or fair use pursuant to paragraph 4(c)(iii) of the Policy. See The Royal Bank of Scotland Group plc, Direct Line Insurance plc, and Privilege Insurance Company Limited v. Demand Domains, c/o C.S.C., NAF Case No. FA 714952 (finding that the operation of a commercial web directory displaying various links to third-party websites was not a use in connection with a bona fide offering of goods or services pursuant to Policy paragraph 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy paragraph 4(c)(iii), as the respondent presumably earned “click-through” fees for each consumer it redirected to other websites); see also Damien Persohn c/o CPPD SAS / Têtu v. Joshua Lim c/o Webxel Consulting Pte Ltd, NAF Case No. FA 874447 (finding that the respondent was not using a disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by redirecting Internet users to a commercial search engine website with links to multiple websites that may be of interest to the complainant’s customers and presumably earning “click-through fees” in the process).
The Panel holds that the Complainant has satisfied its burden of proof under this element of the Policy. C. Registered and Used in Bad Faith
From the circumstances of the present case, it is clear that the Respondent was aware of the Complainant’s marks when it registered and started using the disputed domain name, because inter alia the domain name contains the Complainant’s mark and the website provides links to web sites offering products that directly compete with the Complainant’s products.
The Respondent (who did not reply) has not presented any plausible explanation for its use of the Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from the Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that the Respondent did not have a legitimate use in mind when it registered the disputed domain name.
Indeed the Respondent’s actual use of the disputed domain name (as noted above) is clearly not bona fide, because the Respondent operates a website that contains referrals to products and services that compete with the Complainant. This indicates that the Respondent has registered and is using the disputed domain name to take advantage of the confusing similarity between the disputed domain name and the Complainant’s mark in order to profit from the goodwill associated with the mark in bad faith under paragraph 4(b)(iv) of the Policy. See Zee TV USA, Inc. v. Aamir Siddiqi c/o DotC, NAF Case No. FA 721969 (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also The Association of Junior Leagues International Inc. v. This Domain Name My Be For Sale c/o Legend .name, NAF Case No. FA 857581 (holding that the respondent’s use of the disputed domain names to maintain pay-per-click sites displaying links unrelated to the complainant and to generate click-through revenue suggested bad faith registration and use under Policy paragraph 4(b)(iv)).
The Panel holds that the Complainant has satisfied its burden of proof under this element 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 domain name be transferred to the Complainant.
Richard Hill
Sole Panelist
Dated: August 24, 2010
Full & Egal Universal Law Academy