The Complainant is Aktiebolaget Electrolux of Stockholm, Sweden, represented by Melbourne IT Digital Brand Services, Sweden.
The Respondent is Priscilla Quaiotti Passos of Franco da Rocha, São Paulo, Brazil. 2. The Domain Name and Registrar
The disputed domain name is registered with Universo Online S/A (UOL). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 1, 2011. On March 1, 2011, the Center transmitted by email to Universo Online S/A (UOL) a request for registrar verification in connection with the disputed domain name. On March 1, 2011 and on March 9, 2011 Universo Online S/A (UOL) transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
On March 10, 2011, the Center sent the Language of the Proceeding document to the parties to which Complainant replied on March 14, 2011.
The Center verified that the Complaint fulfills 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 March 18, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was April 7, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 8, 2011.
The Center appointed Antonio Millé as the sole panelist in this matter on April 28, 2011. 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. Language of Proceedings
The Respondent is located in Brazil, country in which is also based the registrar. The Registrar on March 9, 2011 confirmed that the language of the Registrant Agreement was Portuguese.
The Complaint was filed in English. The Center, on March 10, 2011, invited the parties in both English and Portuguese to submit their comments on the language of proceeding. It requested in particular that Complainant justifies the reasons for the language of the proceedings to be English, and to include any evidence or arguments in support of this contention that it may wish to put before the administrative panel; or to alternatively translate the Complaint into Portuguese.
On March 14, 2011, the Complainant submitted to the Center the following:
“the Complainant hereby primarily requests that the proceedings be held in English,
or, secondly, if the panel does not agree to hold the entire proceedings in English, that
the Complainant be allowed to submit its documentation in English (while the
Respondent may still file in Portuguese)”.
The Respondent did not oppose the Complainant’s request, notwithstanding that the Center communicated to the Respondent in both English and Portuguese.
Further to the Notification of the Complaint on March 18, 2011 in both English and Portuguese the Respondent sent an informal email to the Center on March 23, 2011 and April 13, 2011, to which the Center acknowledged answered in Portuguese.
In light of the evidence that the Respondent had notice of the Complaint and the possibility to express objection to the Complainant’s request regarding the language of proceedings, based on paragraph 11(a) of the Rules, the Panel finds adequate grounds in the record before it to accept the Complainant’s request and to proceed in English 5. Factual Background
The Complainant is a publicly traded company that was incorporated in Sweden in 1919, and is now among the world’s top five manufacturers of household appliances, selling more than 40 million products to customers in more than 150 markets every year, with revenues exceeding SEK 105 billion in 2008 and a workforce of over 50,000 employees.
To identify and distinguish in the global marketplace its home and professional appliances including refrigerators, dishwashers, washing machines, vacuum cleaners and cookers, the Complainant had for a long time used the mark ELECTROLUX that is registered in more than 150 countries. Attached to the Complaint, abundant documentation evidences such registrations. The Complainant has registered the trademark ELECTROLUX as a domain name in hundreds of gTLD and ccTLD among the world.
The disputed domain name links to a website where the Panel found a very prominent display of the Complainant’s trademark combined with the title “Assistência Técnica Electrolux” (in English: Electrolux Technical Assistance) where the first screen at the lower/right corner of the webpage displayed the statement “Copyright © Electrolux 2011”. The Panel notes the fact that the banner displayed in the top of the screen mention products of the Complainant and not services of the Respondent. 6. Parties’ Contentions A. Complainant
According to the Complainant (which cites UDRP decisions to support its position), the disputed domain name is confusingly similar, in the sense of the Policy, to the Complainant’s mark.
Further, the Complainant states that 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 offering technical support services for home appliances of the Complainant brand. 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 decisions 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. However, the Respondent submitted informal emails in Portuguese on March 23, 2011, and April 13, 2011. 7. Discussion and Findings A. Identical or Confusingly Similar
The domain name comprises three textual elements: a) the trademark ELECTROLUX; b) the expression “assistenciatecnica” (i.e. “technical assistance”); and c) the denomination of the gTLD “.com”.
The first part of the domain name is identical to the Complainant’s trademark. The addition of the second part “assistenciatecnica” does not diminish a finding of confusingly similarity. Furthermore, it is well established in UDRP decisions that the gTLD suffix “.com” is irrelevant for the purposes of assessing identity and confusingly similarity .
In a very recent case, the domain name was constituted by the same textual elements in different order: . In the case, the panel appropriately stated that:
“…the descriptive phrase in Portuguese language “assistenciatecnica” -which translates into English as “technical assistance”- rather than doing away with confusing similarity, in fact strengthens the connection between the disputed domain name and the Complainant’s highly distinctive and instantly recognizable mark as the Complainant’s customers would likely utilize technical assistance in connection with their ELECTROLUX products” (Aktiebolaget Electrolux v. Domain ID Shield Service Co., LTD / Dorian Cosentino, Planeta Servidor, WIPO Case No. D2010-1277.
In another case related to the same trademark, the panel indicated:
“In the present case, the Panel found that the addition of the suffix “serviciotecnicomadrid” is not relevant in order to make the disputed domain name distinctive from the trademark and will not have any impact on the overall impression of the dominant part of the disputed domain name, ELECTROLUX, recognizable as a world famous trademark” (Aktiebolaget Electrolux v. Agustin AcostaWIPO Case No. D2010-1968).
On this basis, the Panel finds that the disputed domain name, which includes the Complainant’s trademark as a part of it, is confusingly similar to the Complainant’s trademark. The addition of the expression “technical service” in Portuguese does not preclude confusing similarity but on the contrary, contributes to create it.
The Panel finds that the Complainant has met the requirement under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Panel notes that the Respondent has not produced any defense or submitted any evidence that could support any right or legitimate interest to the domain name for purposes of paragraph 4(a)(ii) of the UDRP. The Panel has taken into consideration that the Respondent: a) does not appear to be using the disputed domain name in connection with a bona fide offering of goods or services; b) there is no evidence that the Respondent is commonly known by a denomination similar to the Complainant‘s trademark; and c) is making commercial use of the domain name, with intent for commercial gain by means of misleadingly divert consumers.
The Panel finds that the Complainant has met the requirement under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
In this case, there are no circumstances that could allow the Panel to consider the registration and use of the disputed domain name in good faith.
The examination of the web site content indicates to the Panel that the Respondent is apparently using it to offer technical support services for home appliances of the ELECTROLUX brand (as well as services for “diverse brands, national and foreign” also mentioned on the website). As there is no apparent legitimate reason in this Panel’s view for the registration of this domain name without bad faith, and as the Respondent decided not to submit a formal response, it is appropriate to conclude in these circumstances that the disputed domain name was registered and used in bad faith.
The Panel finds that the Respondent’s web site presentation and content is directed to create the initial impression that Internet users have accessed to an official service of the ELECTROLUX brand and therefore, that the Respondent “has intentionally attempted to attract, for commercial gain, Internet users to (its) web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of (its) web site or location or of a product or service on your web site or location”.
The Panel finds that the Complainant has met the requirement under paragraph 4(a)(iii) of the Policy. 8. 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.
Antonio Millé
Sole Panelist
Dated: May 11, 2011
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