The Complainant is Aktiebolaget Electrolux of Stockholm, Sweden, represented by Melbourne IT Digital Brand Services, Sweden.
The Respondent is Nguyen Van Dien of Hai Duong, Viet Nam. 2. The Domain Name and Registrar
The disputed domain name is registered with PDR Ltd. d/b/a PublicDomainR (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 12, 2013. On July 12, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 13, 2013, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
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 July 18, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was August 7, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 8, 2013.
The Center appointed Tuukka Airaksinen as the sole panelist in this matter on August 14, 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 is a Swedish company specializing in producing appliances and equipment for kitchen and cleaning since 1901. The Complainant is the owner of the trademark ELECTROLUX, registered in more than 150 countries around the world, including Viet Nam, where the Respondent is domiciled.
The Respondent’s disputed domain was registered on February 26, 2013. 5. Parties’ Contentions A. Complainant
The Complainant contends that its trademark is a well-known trademark, to which the disputed domain name is confusingly similar. The disputed domain name consists of the Complainant’s trademark and the addition of “baohanh”. The text “TRUNG TÂM BẢO HÀNH ĐIỆN MÁY” on the Respondent’s website is Vietnamese and translates into “Electric Factory Warranty Center”, which is a generic term. Because the Complainant’s trademark is well-known for home appliances, said term “baohanh” strengthens the impression that the disputed domain name is affiliated with the Complainant.
The Respondent has no rights or legitimate interests in the domain name. The Respondent is not affiliated to the Complainant in any way and the Complainant has not authorized the Respondent’s use of its mark. The Respondent is not an authorized reseller of the Complainant’s goods. The Complainant also asserts that the Respondent’s use of the disputed domain name is not bona fide use of the Complainant’s trademark. The use is an attempt to ride on the coat tails of the Complainant’s reputation.
The disputed domain name resolves to a website offering home appliances from various manufacturers that are competitors of the Complainant, such as SIEMENS, BOSCH and SHARP. Because of the reputation of the Complainant’s trademark, the Respondent must have been aware of it when registering the disputed domain name. The disputed domain name is therefore used to attract, for commercial gain, Internet users to a website, which offers goods of the trademark owner’s competitors. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The disputed domain name obviously includes the Complainant’s trademark ELECTROLUX. It also includes the term “baohanh”, whose meaning is left somewhat unclear. The Complainant explains the meaning of the phrase “TRUNG TÂM BẢO HÀNH ĐIỆN MÁY”, in which the term is included, but does not explain what is the meaning of the term “baohanh” or “bao hanh” alone. It would have been helpful had the Complainant offered a clear explanation of that term.
However, the Respondent has not contested the translation of the phrase as offered by the Complainant, so the Panel is prepared to accept that it means “Electric Factory Warranty Center”. Considering the Complainant’s business and the products for which its trademark is known for, each of these words either alone or in combination with one or more of these words is indeed a generic indication when their meaning is examined against the products of the Complainant. Therefore, even if the Panel cannot determine the exact meaning of the term “baohanh”, it accepts that any one of the indicated meanings together with the Complainant’s well-known trademark would enhance the association with the Complainant.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark. B. Rights or Legitimate Interests
The consensus view among UDRP panels is that paragraph 4(c) of the Policy shifts the burden to the Respondent to come forward with evidence of a right or legitimate interest in the disputed domain name, once the Complainant has made a prima facie showing indicating the absence of such rights or interests. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No.D2000-0270 and paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”).
The Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name by asserting that it has not authorized the use of the disputed domain name, that the Respondent is not commonly known by that name, that the Respondent is not an authorized reseller and that the Respondent is not making bona fide use of the Complainant’s trademark. The Respondent has chosen not to reply to these contentions.
Therefore the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
Based on the Complainant’s evidence, the Panel accepts that the Complainant’s trademark ELECTROLUX is a well-known trademark within the meaning of Article 6bis of the Paris Convention. Therefore, and bearing in mind that the Respondent is offering goods from the Complainant’s competitors as explained below, it is unlikely that the Respondent would not have been aware of the Complainant’s trademark when registering the disputed domain name.
The website to which the disputed domain name resolves is apparently in Vietnamese, which the Panel is not familiar with. However, it is clear that the website includes logos of such manufacturers as LG, SHARP, SAMSUNG, SONY and TOSHIBA. As the Complainant contends, and which is also a generally known fact, these companies are active in the field of home appliances and are therefore regarded as competitors of the Complainant.
It is therefore appears from the website that the disputed domain name is used to attract Internet users, for commercial gain, to the Respondent’s website, by creating a likelihood of confusion with the Complainant’s trademark.
The Panel therefore finds that the disputed domain name has been registered and is used 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 disputed domain name be transferred to the Complainant.
Tuukka Airaksinen
Sole Panelist
Date: August 26, 2013
Full & Egal Universal Law Academy