The Complainant is AB Electrolux of Stockholm, Sweden, represented by Melbourne IT Digital Brand Services, Sweden.
The Respondent is Whois Privacy Protection Service, Inc of Bellevue, Washington, United States of America (“US”) / liderservis plus of Istanbul, Turkey. 2. The Domain Name and Registrar
The disputed domain name is registered with Spot Domain LLC dba D (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 18, 2013. On January 18, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 21, 2013, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on January 30, 2013 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 January 30, 2013
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 January 31, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was February 20, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 22, 2013.
The Center appointed Torsten Bettinger as the sole panelist in this matter on February 28, 2013. 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, a Swedish company founded in 1901, is a leading producer of appliances and kitchen equipment, designed for both home and professional purposes. The Complainant has indicated that it sells roughly 40 million products to customers in 150 countries every year, and is the owner of numerous brands including ELECTROLUX, AEG, AEGELECTROLUX, ZANUSSI, EUREKA and FRIGIDAIRE. In 2010, the Complainant saw sales of SEK 109 billion and maintained approximately 55,150 employees. The Complainant’s ELECTROLUX trademark has been registered since at least as early as February 1924.
The Respondent, who apparently had initially registered the domain name utilizing a privacy service, has used the disputed domain name in connection with a Turkish-language website advertising repair services for the Complainant’s equipment within Istanbul. The Respondent’s services relate to the Complainant’s branded goods, and the website includes a disclaimer noting that all trademarks are the property of their respective owners and that the respondent provides repair services for ELECTROLUX products. The website also contains photographs of the Complainant’s products and reproduces the Complainant’s graphical logo. The disputed domain name was registered on October 8, 2012. 5. Parties’ Contentions A. Complainant
The Complainant asserts that each of the elements specified in paragraph 4(a) of the Policy has been satisfied.
With regard to the first element, under paragraph 4(a)(i) of the Policy, the Complainant states that the addition of the two dash symbols and the generic word “servisi”, meaning “service” in Turkish, do nothing to dispel the risk of confusing similarity between its ELECTROLUX trademark and the disputed domain name.
Concerning the second element of the Policy, the Complainant confirms that it has no relationship with the Respondent, and has not authorized it to use the ELECTROLUX trademark in any fashion. The Complainant states that the Respondent is not an authorized dealer or reseller of the Complainant’s goods or replacement parts, and further that the Respondent does not appear to be commonly known by any name corresponding to the disputed domain name. As the Respondent is using the disputed domain name to advertise its own business activities, the website is clearly commercial in nature. Further, the Complainant contends that the use of the Complainant’s well-known trademark in the disputed domain name, and the inclusion of the Complainant’s logo and trademark on the Respondent’s website indicates that the Respondent is trading on the Complainant’s mark in order to drive business to its website, which the Complainant states is not a bona fide offering of goods or services.
Finally, with regard to the third element, the Complainant notes that given the longstanding and widespread use of its trademark it is impossible that the Respondent selected the disputed domain name without knowledge of the trademark. Further, the Complainant avers that the Respondent is luring traffic to its website for commercial gain on the basis of Internet user confusion, as prohibited under paragraph 4(b)(iv) of the Policy. Additionally, the Complainant contends that the Respondent’s failure to reply to a cease-and-desist letter sent prior to the filing of the UDRP Complaint supplies additional evidence of the Respondent’s bad faith intentions. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
In order to succeed under the first element of the Policy, the Complainant must demonstrate both its rights in the relevant trademark and that the disputed domain name is identical or confusingly similar to said trademark. Here, the Complainant has provided evidence of its numerous registrations for the ELECTROLUX trademark, dating from at least as early as February 1924. Accordingly, the Panel finds that the Complainant has demonstrated its rights for the purposes of the Policy.
The addition of a dictionary word or term which is logically related a complainant’s goods or services, as is the case here, will not generally serve to distinguish a respondent’s domain name from the relevant trademark, and it has been well established that the generic top-level domain (gTLD) suffix is not taken into consideration when assessing identity or confusing similarity under the Policy. See Revlon Consumer Products Corporation v. Vladimir Sangco,WIPO Case No. D2010-1774.
Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s ELECTROLUX trademark, and that the Complainant has established the requirement of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy requires the Complainant to prove that the Respondent has no rights or legitimate interests in the disputed domain name. It is, however, the consensus view among UDRP panelists that if the complainant makes a prima facie case that the respondent has no rights or legitimate interests, and the respondent fails to show one of the three circumstances under paragraph 4(c) of the Policy, then the respondent may lack a legitimate interest in the domain name. See Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110.
In this case, the Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in the disputed domain name. The Complainant confirms that it has not licensed or authorized the Respondent to use its ELECTROLUX mark in any fashion, that the Respondent is not an authorized licensee or reseller of the Complainant’s goods, and that there is no connection between the Respondent and the Complainant. Additionally, there is no evidence on the present record, or in the publicly-available WhoIs data, to indicate that the Respondent is commonly known by the disputed domain name or a name corresponding to the disputed domain name.
The only use to which the Respondent has put the disputed domain name is to advertise the Respondent’s repair service business. According to the statements made on its website, the Respondent repairs kitchen and electronics equipment made by the Complainant, and undertakes such repairs using authorized replacement parts. The name of the Respondent’s apparent business is not displayed on the website, and the only header located on the website is the Complainant’s graphical logo followed by text which reads “Electrolux Service Center.”
The Respondent’s website does contain a disclaimer, but the text is insufficient to dispel the strong impression that the Respondent is connected to or authorized by the Complainant. The text indicates that the Respondent provides repair services for the Complainant’s branded goods, and states that the trademarks used on the website belong to their “respective” companies. The Respondent’s use of the Complainant’s logo as the only title and header for the website, and the use of the ELECTROLUX mark in the disputed domain name, implies to the Panel that the Respondent’s website is in some way authorized by the Complainant. The provided disclaimer text does not adequately dispel this impression. See also Aktiebolaget Electrolux v. PrivacyP / Gokhan KAZAK,WIPO Case No. D2012-0987.
UDRP panels have previously found the unauthorized use of a complainant’s trademark to attract Internet users to a website offering repair services for the benefit of commercial gain does not constitute a bona fide offering for the purposes of the Policy. See AB Electrolux v. Pablo Rodriguez Guirao,WIPO Case No. D2011-0729; Aktiebolaget Electrolux v. Li Yong,WIPO Case No. D2012-1782; and Costco Wholesale Corporation, Costco Wholesale Membership, Inc., Price Costco International, Inc. v. Scott Williams,WIPO Case No. D2009-1698.
The Panel notes in this regard that the Respondent has been provided with appropriate notice of these proceedings but has not elected to submit any substantive Response, to rebut the Complainant’s allegations, or to offer any explanation as to why it may have selected the disputed domain name in question. If the Respondent were in possession of documents or evidence indicating a right or legitimate interest in the disputed domain name, the Panel would expect the Respondent to have supplied such information. In the absence of a Response, and in light of the Complainant’s prima facie case demonstrating the Respondent’s lack of rights in the disputed domain name, the Panel concludes that this element of the Policy is also satisfied. C. Registered and Used in Bad Faith
The Complainant has demonstrated that its ELECTROLUX mark has been registered since at least as early as February 1924, over eighty years prior to the Respondent’s registration of the disputed domain name. The disputed domain name contains the Complainant’s trademark in its entirety, in conjunction with the non-distinctive dictionary word “servisi” and two dash marks. The Respondent has utilized the disputed domain name to direct Internet traffic to a website where it offers repair services for the Complainant’s goods and advertises such services under a copy of the Complainant’s logo trademark. Thus, it is clear to the Panel that the Respondent was fully aware of the Complainant and its ELECTROLUX mark when it selected the disputed domain name.
By registering the disputed domain name, the Respondent was clearly attempting to divert Internet traffic, intended for the Complainant’s website, to its own website for commercial gain by creating a likelihood of confusion as to the source or sponsorship of the Respondent’s website. Such use constitutes bad faith under paragraph 4(b)(iv) of the Policy. See AB Electrolux v. Pablo Rodriguez Guirao, supra.
Additionally, the existence of a disclaimer cannot by itself cure bad faith, when bad faith has been established by other factors. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 3.5.
The Panel therefore concludes that the requirement of paragraph 4(a)(iii) of the Policy has also been met. 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.
Torsten Bettinger
Sole Panelist
Date: March 18, 2012
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