The Complainant is Aktiebolaget Electrolux of Stockholm, Sweden represented by Melbourne IT Digital Brand Services AB, Sweden.
The Respondent is Electrolux International (HK) Co., Ltd. of Shenzhen, the People’s Republic of China. 2. The Domain Name and Registrar
The disputed domain name (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 29, 2011. On April 29, 2011, the Center transmitted by email to Xin Net Technology Corp. a request for registrar verification in connection with the Disputed Domain Name. On May 3, 2011, 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.
On May 3, 2011, the Center transmitted an email communication to the parties in Chinese and English regarding the language of the proceeding. On the same day, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding by the specified due date.
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 May 10, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was May 30, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 31, 2011.
The Center appointed Kar Liang Soh as the sole panelist in this matter on June 8, 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. Factual Background
The Complainant was founded in 1901 in Sweden and is a leading producer of kitchen and cleaning appliances and equipment. The Complainant sells over 40 million products including refrigerators, dishwashers, washing machines, vacuum cleaners and cookers to customers in 150 countries annually. In 2009, the Complainant achieved sales of SEK 109 billion and maintained an employee base of 51,000.
The Complainant sells its products under the trade mark ELECTROLUX, among other brands. The ELECTROLUX trade mark is registered in over 150 countries including the following:
Jurisdiction
Trade Mark Number
Registration Date
China
862864
August 14, 1996
CTM
77925
September 16, 1998
Hong Kong, SAR of China
19730028AA
February 2, 1972
The ELECTROLUX trade mark has been recognized as a well-known mark by previous UDRP panels (e.g., AB Electrolux v. Ilgaz Fatih Micik,WIPO Case No. D2009-0777).
The Complainant has also registered about 700 domain names incorporating the ELECTROLUX trade mark including , and . The Complainant’s domain name resolves to a website which displays the ELECTROLUX trade mark prominently.
Very little information about the Respondent is available beyond the following:
(a) the WhoIs record of the Disputed Domain Name;
(b) the website resolved from the Disputed Domain Name; and
(c) the prior panel decision of Aktiebolaget Electrolux v. Electrolux International (HK) Co., Ltd./David,WIPO Case No. D2010-1308 wherein the panel determined on September 29, 2010 that the Respondent should transfer the domain name to the Complainant.
The Disputed Domain Name was registered on November 12, 2010, many years after the Complainant’s trade mark registrations. The Panel noted that the website resolved from the Disputed Domain Name displayed a logo incorporating the word “electrolux” as a prominent feature. The website also identifies the company name “Electrolux International (HK) Co., Ltd.” and associates “Electrolux” with “ic” (which in all likelihood means integrated circuits), semiconductors and other electronic components.
The Complainant contacted the Respondent on February 14, 2011 through a cease and desist letter requesting a voluntary transfer of the Disputed Domain Name to the Complainant. The Respondent did not reply to the Complainant despite a reminder on March 2, 2011. 5. Parties’ Contentions A. Complainant
The Complainant contends that:
(a) The Disputed Domain Name is confusingly similar to the ELECTROLUX trade mark. It comprises the word ELECTROLUX and adds the suffix “ic” which is not relevant and does not prevent a finding of confusing similarity with the ELECTROLUX trade mark;
(b) The Respondent has no rights or legitimate interests in the Disputed Domain Name. The Complainant could not find any trade mark registrations of the Respondent corresponding to the Disputed Domain Name. No license or authorization to use the ELECTROLUX has been given by the Complainant to the Respondent. The Respondent is not using the Disputed Domain Name in connection with a bona fide offering of goods or services; and
(c) The Disputed Domain Name was registered and is being used in bad faith. The ELECTROLUX trade mark is well-known. The Respondent was well aware of the ELECTROLUX trade mark in view of the prior UDRP panel decision of Aktiebolaget Electrolux v. Electrolux International (HK) Co., Ltd./David, supra in which the Respondent was also the respondent. The Respondent was using the Disputed Domain Name to intentional attempt to attract, for commercial gain, Internet users to the website resolved there from, by creating a likelihood of confusion with the ELECTROLUX trade mark as to source, sponsorship, affiliation or endorsement of the website. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of the Proceeding
The language of the Registration Agreement is Chinese and the default language of the proceeding is Chinese. The Complainant has requested that the proceeding be in English instead. Based on the following circumstances, the Panel determines under UDRP Rules paragraph 11(b) that English be adopted as the language of the proceeding:
(a) The Complaint was filed in English and the Respondent did not protest to the language;
(b) The website resolved from the Disputed Domain Name is substantially in English, indicating that the Respondent is or has ready access to persons competent in English;
(c) The Respondent did not file a Response and apparently does not wish to participate in the proceeding;
(d) The proceeding will likely be put through unnecessary trouble and delay if Chinese were made the language of the proceeding; and
(e) No discernible benefit to the parties or the proceeding in the circumstances may be gained by maintaining the default language of the proceeding. 6.2 Discussion
The Complainant must establish that the following limbs of Paragraph 4(a) of the Policy in order to be successful in this proceeding:
(a) The Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;
(b) The Respondent has no rights or legitimate interest in respect of the Disputed Domain Name; and
(c) The Disputed Domain Name was registered and is being used in bad faith. A. Identical or Confusingly Similar
The ELECTROLUX trade mark is a registered trade mark in many countries. Registration No. 862864 in China dates back to 1996 and the Complainant clearly ha trade mark rights to the ELECTROLUX trade mark. A domain name which incorporates a trade mark in its entirety and other elements which do not distinguish it from the trade mark is by the consensus view of previous UDRP panels confusingly similar to the trade mark for purposes of paragraph 4(a) of the Policy.
The Disputed Domain Name incorporates the ELECTROLUX trade mark in its entirety. It is not immediately obvious what the letters “ic” represent but based on the name of the Respondent and the goods advertised on the website resolved from the Disputed Domain Name, it may be reasonably surmised “ic” is an acronym for either “International Co” or “integrated circuit”. Both possibilities are descriptive words which do not in the Panel’s view help to distinguish the Dispute Domain Name from the ELECTROLUX trade mark.
The Panel therefore holds that the Disputed Domain Name is confusingly similar to the ELECTROLUX trade mark and the first limb of paragraph 4(a) of the Policy is established. B. Rights or Legitimate Interests
Previous UDRP panels have recognized that a complainant only has to show a prima facie case of the second limb of paragraph 4(a) of the Policy for the burden of proof to shift the respondent. In the present case, the Complainant has confirmed that it has not licensed or authorized the Respondent to use the ELECTROLUX trade mark. There is no evidence that the Respondent holds any trade mark rights in the word ELECTROLUX.
Although the Respondent’s name incorporates the word “electrolux”, the Complainant has raised allegations as to whether the Respondent’s name is an official and/or real name, and whether the offer of goods on the website resolved from the Disputed Domain Name is bona fide. These are serious allegations. A reasonable person/business faced with such allegations is unlikely to remain silent. In view of the lack of a Response by the Respondent, the Panel draws an adverse inference that reality does not permit the Respondent to confront the Complainant’s allegations.
In the circumstances, the Complainant has shown a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name. The prima facie case has not been rebutted in the absence of a Response. Therefore, the second limb of paragraph 4(a) of the Policy is also established. C. Registered and Used in Bad Faith
Paragraph 4(b)(iv) of the Policy states:
“by using the domain name, [the Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the Respondent’s] 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 [the Respondent’s] web site or location or of a product or service on [the Respondent’s] web site or location.”
The Respondent is offering information about its products on the website resolved from the Disputed Domain Name. On the evidence available, the Disputed Domain Name is clearly being used to attract Internet users for commercial gain. The Panel agrees with the prior UDRP panels in AB Electrolux v. Ilgaz Fatih Micik, supra and Aktiebolaget Electrolux v. Electrolux International (HK) Co., Ltd./David, supra that the ELECTROLUX trade mark is well-known. As such, a reasonable Internet user visiting the website resolved from the Disputed Domain Name is likely to be confused as the source, sponsorship, affiliation, or endorsement of the website. In the circumstances, the facts fall within the situation of paragraph 4(b)(iv) of the Policy.
The Panel also noted the registration of the Disputed Domain Name prevented the Complainant from reflecting the ELECTROLUX trade mark in a domain name corresponding to the Disputed Domain Name. The Respondent has previously prevented the Complainant from reflecting its ELECTROLUX trade mark in relation to the domain name (Aktiebolaget Electrolux v. Electrolux International (HK) Co., Ltd.David, supra). Despite having been ordered to transfer that domain name to the Complainant in September 2010, the Respondent again took aim at the ELECTROLUX trade mark by registering the Disputed Domain Name barely 2 months later. Such conduct on the part of the Respondent is consistent with a pattern which falls within the mischief envisaged by paragraph 4(b)(ii) of the Policy.
Based on the above, the third limb of paragraph 4(a) of the Policy is established. 7. Decision
For 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.
Kar Liang Soh
Sole Panelist
Dated: June 30, 2011
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