The Complainant is Aktiebolaget Electrolux of Stockholm, Sweden, represented by Melbourne IT Digital Brand Services of Sweden.
The Respondent is Senol Teknik servis of Istanbul, Turkey. 2. The Domain Names and Registrar
The disputed domain names , , and are 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 October 6, 2010. On October 7, 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 names. On October 8, 2010, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On October 11, 2010, the Center sent an email to the Complainant, notifying it of a Complaint deficiency. On October 11, 2010, the Complainant provided the Center with an amendment to the Complaint.
The Center verified that the Complaint together with the amendment to 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 October 13, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was November 2, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 3, 2010.
The Center appointed Miguel B. O’Farrell as the sole panelist in this matter on November 9, 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.
According to the reply transmitted by email to the Center on October 8, 2010 by Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR, the Panel finds that the English language will be the language of the proceedings. 4. Factual Background
The Complainant is a Swedish joint stock company founded in 1901, being a world-leading producer of appliances and equipment for kitchen and cleaning, and for professional users.
The Complainant owns trademark registrations for ELECTROLUX, KELVINATOR, AEG and FRIGIDAIRE, particularly a United States of America registration No. 908.002, granted on February 16, 1971, a CTM registration No. 77925, granted on September 16, 1998, and a Turkish registration No. 78814, granted on December 31, 1993, for ELECTROLUX; a CTM, registration No.73510, granted on December 13, 1999 and a United States of America registration No. 3352834, granted on December 11, 2007, for KELVINATOR; a CTM, registration No.71241, granted on December 13, 1999 and a United States of America registration No. 1039142, granted on May 11, 1976, for FRIGIDAIRE; and a CTM, registration No. 3970761, granted on November 24, 1998 and a United States of America Serial No. 77280766, filed on September 17, 2007, for AEG.
The Respondent registered the disputed domain names , and , on June 10, 2010, and on June 9, 2010. 5. Parties’ Contentions A. Complainant
The Complainant contends the following:
The Complainant contends that it is a Swedish joint stock company founded in 1901, being a world-leading producer of appliances and equipment for kitchen and cleaning, and for professional users, and the market leader in many of the individual product categories in which they compete, selling more than 40 million products to customers in 150 countries every year.
Moreover, the Complainant contends that it owns trademark registrations for ELECTROLUX, KELVINATOR, AEG and FRIGIDAIRE in several classes and countries, most of which have been registered before the Respondent registered the disputed domain names , and , on June 10, 2010, and on June 9, 2010.
Furthermore, it contends that it is the owner of several gTLDs and ccTLDs domain names incorporating the trademarks ELECTROLUX, KELVINATOR, AEG and FRIGIDAIRE, particularly , , and .
On the other hand, the Complainant contends that the most distinctive terms in the disputed domain names are “Electrolux”, “Kelvinator”, “Aeg” and “Frigidaire”, which are identical to trademarks in which the Complainant has rights, adding that the mere addition of “servisi”, the English translation of which is “service”, does not have any impact on the overall impression of confusion.
Furthermore, the Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name and that the Complainant has not licensed or given any authorization to the Respondent to use the trademarks ELECTROLUX, KELVINATOR, AEG and/or FRIGIDAIRE.
In that connection, the Complainant contends that the Respondent is not making a bona fide offering of goods or services as the websites to which the disputed domain names resolve offer competing services to those offered by the Complainant and, therefore, the Respondent is misleading Internet users and sponging off the Complainant’s trademarks ELECTROLUX, KELVINATOR, AEG and FRIGIDAIRE.
Moreover, it contends that there is no evidence that the Respondent has ever been known by “Electrolux”, “Kelvinator”, “Aeg” and/or “Frigidaire”, nor that the Respondent operates a business or any other organization under the disputed domain names.
On the other hand, the Complainant contends that the Respondent both registered and uses the disputed domain names in bad faith.
In that connection, the Complainant contends that the Respondent knew or should have known the Complainant and its well-known trademarks ELECTROLUX, KELVINATOR, AEG and FRIGIDAIRE, which evidences its bad faith registration.
Moreover, the Complainant contends that by using the disputed domain names, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its websites and other on-line locations, by creating a likelihood of confusion with the Complainant’s trademarks as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website.
The Complainant further contends that the fact that the Respondent has registered 4 domain names including trademarks owned by the Complainant, evidences that the Respondent knew the Complainant and its trademarks.
In light of the foregoing, the Complainant requests that the disputed domain name be transferred to it. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
For the Complainant to succeed in a UDRP proceeding, under paragraph 4(a) of the Policy, the Complainant must prove that:
(i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) The disputed domain name has been registered and is being used in bad faith.
In accordance with paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable. A. Identical or Confusingly Similar
The Complainant owns trademark registrations for ELECTROLUX, KELVINATOR, AEG and FRIGIDAIRE, as noted under paragraph 4, “Factual Background” above.
The disputed domain names , , and incorporate the trademarks ELECTROLUX, KELVINATOR, AEG and FRIGIDAIRE in their entirety. The Panel also finds that the terms “Electrolux”, “Kelvinator”, “Aeg” and “Frigidaire” are the most distinctive terms in the disputed domain names (mot vedette).
The mere addition of the descriptive term “servisi”, the English translation of which is “service”, does not avoid the risk of confusion with the Complainant’s marks. In the context of this case, it merely evokes the nature of the goods.
In view of the foregoing, the Panel finds that the disputed domain names , , and are confusingly similar to trademarks in which the Complainant has rights, and therefore, the Complainant has succeeded on this first element under the Policy. B. Rights or Legitimate Interests
According to paragraph 4(a)(ii), the second element that the Complainant must prove is that the Respondent has no rights or legitimate interests in respect of the disputed domain name. Paragraph 4(c) of the Policy sets out various ways in which a respondent may demonstrate rights or legitimate interests in a domain name.
Although the Policy states that the complainant must prove each of the elements in paragraph 4(a), it is often observed that it is difficult for a complainant to prove a negative, i.e., that a respondent has no rights or legitimate interests in respect of a domain name. It has therefore become generally accepted under the Policy that, once a complainant has presented a clear prima facie showing of a respondent’s lack of rights or legitimate interests in a domain name, the burden of submitting evidence therefore shifts to the respondent. The respondent must then demonstrate its rights or legitimate interests in the disputed domain name with concrete evidence in order to refute the prima facie case.
The Panel finds that the Complainant has made a prima facie showing that the Respondent has no rights or legitimate interests, so the burden of proof has effectively been shifted to the Respondent, who did not reply to the Complainant’s contentions and, therefore, has not made such showing.
In that connection, the Complainant has submitted relevant evidence showing that the Respondent has not made a bona fide offering of goods or services. The websites to which the disputed domain names resolve offer competing services to those offered by the Complainant.
In the terms of the Policy, such use in the present circumstances does not appear to be a fair use of the disputed domain name and, therefore, the Panel finds that the Respondent is trying to misleadingly divert consumers to the websites to which the disputed domain names resolve. Moreover, the Panel finds that the Respondent is attracting Internet users to its websites for commercial gain. Such use cannot be considered a bona fide, fair or noncommercial use.
Additionally, there is no evidence that the Respondent is commonly known as or identified by “Electrolux”, “Kelvinator”, “Aeg” and/or “Frigidaire”, or that it has any rights in them. Furthermore, there is no evidence showing that the Respondent operates a business or any other organization under the disputed domain names.
For these reasons, and in the absence of a plausible explanation from the Respondent, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
According to paragraph 4(a)(iii) of the Policy, the third element that a complainant must prove is that the disputed domain name has been registered and is being used in bad faith.
The Policy in paragraph 4(b) sets out various circumstances, which may be treated by the Panel as evidence of the registration and use of a domain name in bad faith.
The Complainant has identified itself as a Swedish joint stock company founded in 1901, being a world leading producer of appliances and equipment for kitchen and cleaning, of equipment for professional users and the market leader in many of the individual product categories in which they compete, selling more than 40 million products to customers in 150 countries every year.
Moreover, as previously noted, the Complainant has filed relevant evidence to the Panel’s satisfaction showing that it owns trademark registrations for ELECTROLUX, KELVINATOR, AEG and FRIGIDAIRE in several classes and countries, most of which have been registered before the Respondent registered the disputed domain names , and , on June 10, 2010, and on June 9, 2010.
In view of the foregoing, and in the absence of a rebuttal from the Respondent, the Panel finds that the Respondent was aware or must have been aware of the trademarks ELECTROLUX, KELVINATOR, AEG and FRIGIDAIRE before registering the disputed domain names , , and , which evidences bad faith registration.
This conclusion is reinforced by the fact that the Respondent has registered 4 domain names including trademarks owned by the Complainant.
Moreover, as stated by the Complainant and on the basis of the printouts of the website to which the disputed domain names resolve, and in the absence of a rebuttal by the Respondent, the Panel finds that by using the disputed domain names, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its websites or other on-line locations, by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement.
For these reasons, the Panel finds that the Respondent both registered and is using the disputed domain names in bad faith and that the Complainant has therefore made out the third element of it case. 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.
Miguel B. O’Farrell
Sole Panelist
Dated: November 17, 2010
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