The Complainant is Aktiebolaget Electrolux of Stockholm, Sweden, represented by Melbourne IT Digital Brand Services, Sweden.
The Respondent is Protected Domain Services - Customer ID: NCR-3460652 / Edmund Lee of Denver, Colorado, United States of America; and Chicago, Illinois, United States of America, respectively. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with N LLC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 15, 2011. On November 15, 2011, the Center transmitted by email to N LLC a request for registrar verification in connection with the Domain Name. On November 16, 2011, N LLC. transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on November 17, 2011, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on November 17, 2012.
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 response from a communication from the Respondent, the Complainant requested a suspension of the proceedings on November 15, 2011, which was entered on November 17, 2011. After a failure to resolve the matter the proceedings were reinstituted on January 17, 2012.
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 January 27, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was February 16, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 20, 2012.
The Center appointed Ian Lowe as the sole panelist in this matter on February 28, 2012. 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, Aktiebolaget Electrolux, is a Swedish company founded in 1901. It is a world-leading producer of appliances and equipment for kitchen and cleaning. It sells more than 40 million products to customers in 150 countries every year. The Complainant’s products include refrigerators, dishwashers, washing machines, vacuum cleaners and cookers, sold under well-known brands such as ELECTROLUX, AEG, AEG-ELECTROLUX, ZANUSSI and FRIGIDAIRE. In 2010, the Complainant had sales of SEK 106 billion and 52,000 employees.
The Complainant has registered the trademark ELECTROLUX as a word and figure mark in several classes in more than 150 countries all over the world. The Complainant has also registered the trademark ELECTROLUX as a domain name in almost 700 top-level domains worldwide.
The Domain Name was registered on July 31, 2011. At the date of the Complaint, the Domain Name resolved to a web page of sponsored links to websites, including one or more that offered products competing with those of the Complainant.
The Respondent did not respond to a cease and desist letter sent on behalf of the Complainant on September 16, 2011. On November 15, 2011, in response to service of the Complaint, the Respondent Edmund Lee sent an email to the Complainant, copied to the Center, stating “I agree to willingly transfer the domain ELECTROLUX to the Complainant.” In the event, the Domain Name was not transferred. 5. Parties’ Contentions A. Complainant
The Complainant claims extensive rights in the trademark ELECTROLUX by virtue of substantial long-term use in commerce and its numerous registrations around the world, including Community Trademark No. 000077925 for ELECTROLUX in various classes registered on September 16, 1998 and United States Trademark Registration No. 0908002 for ELECTROLUX in Class 21 registered on February 16, 1971.
It further contends that the addition of the term "refrigerator reviews” does not have any impact on the overall impression of the instantly recognizable part of the domain name, ELECTROLUX. Rather, the inclusion of “refrigerator" which describes one of the product lines of the Complainant together with “reviews” rather strengthens the impression that the Domain Name is in some way connected with the Complainant. For the purposes of comparison the suffix ".net" should be ignored. The Complainant therefore claims rights in a trademark to which the Domain Name is confusingly similar.
According to the Complainant, it has never authorised the Respondent to use the trademark ELECTROLUX or the Domain Name or a domain name incorporating the word “Electrolux”. The Respondent is not using the Domain Name in connection with a bona fide offering of goods or services. Rather, it has deliberately chosen a domain name based on a registered trademark to generate traffic to a web site where sponsored links are displayed. The Complainant asserts that the Respondent does not have any rights or legitimate interests in the Domain Name and relies on the statement in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") that:
“Panels have generally recognized that use of a domain name to post parking and landing pages or PPC links may be permissible in some circumstances, but would not of itself confer rights or legitimate interests arising from a "bona fide offering of goods or services" [see also paragraph 3.8 below] or from "legitimate noncommercial or fair use" of the domain name, especially where resulting in a connection to goods or services competitive with those of the rights holder. [...] By contrast, where such links are based on trademark value, UDRP panels have tended to consider such practices generally as unfair use resulting in misleading diversion.”
The Complainant submits, with regard to bad faith registration and use, that the Respondent must have been aware of the Complainant’s rights in the ELECTROLUX trademark at the time of registration of the Domain Name and the value of that trademark and has used the Domain Name misleadingly to divert consumers for the Respondent’s own commercial gain. A potential consumer accessing the Domain Name would have a legitimate expectation that he or she was communicating with the Complainant and would consequently be misled. B. Respondent
The Respondent did not reply to the Complainant’s contentions, save for the email from the Respondent Edmund Lee dated November 15, 2011, indicating that he was willing to transfer the Domain Name to the Complainant. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name the Complainant must prove that:
(i) the 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 Domain Name; and
(iii) the Domain Name has been registered in bad faith and is being used in bad faith. A. Identical or Confusingly Similar
The Complainant has established uncontroverted, widespread rights in the trademark ELECTROLUX. The Panel accepts that the addition of the non-distinctive term "refrigeratorreviews" does not detract from the distinctiveness of the mark as the dominant element of the Domain Name. The suffix ".net" may be disregarded.
The Panel therefore finds that the Domain Name is confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests
As paragraph 2.1 of the WIPO Overview 2.0 states, the consensus view is that once a complainant makes out a prima facie case on this element of the Policy, then the respondent carries the burden of demonstrating rights or legitimate interests in the disputed domain name. Here, the Respondent did not file any formal response. The Respondent has chosen not to answer the Complainant’s case or to respond directly to the allegations made in the Complaint. Indeed, the only apparent communication from the Respondent was an email volunteering to transfer the Domain Name to the Complainant. Furthermore, although the Domain Name suggests that it would be used for a web site offering reviews of products of the Complainant, it instead resolves only to a webpage with sponsored links.
The Respondent has not therefore displaced the assertion on the part of the Complainant that the Respondent does not have any rights or legitimate interests in the Domain Name.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name. C. Registered and Used in Bad Faith
The Panel accepts that in light of the notoriety of the Complainant’s trademark ELECTROLUX and the association in the Domain Name to refrigerators, one of the products of the Complainant, the Respondent must have had the Complainant’s mark in mind when the Respondent registered the Domain Name. Furthermore, the Respondent has used the Domain Name to mislead Internet users into believing that the website associated with it was connected with the Complainant and/or that it would provide reviews of the Complainant’s products. In fact, the Respondent is using the attractive force of the Complainant’s mark to mislead Internet users to the Respondent’s webpage of sponsored links for commercial gain. The Respondent is, in the view of the Panel creating a likelihood of confusion with the Complainant's marks as to the source, sponsorship, affiliation or endorsement of the web site.
In the circumstances, the Panel finds that the Respondent registered and is using the Domain Name in bad faith. 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 Domain Name be transferred to the Complainant.
Ian Lowe
Sole Panelist
Dated: March 6, 2012
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