The Complainant is Aktiebolaget Electrolux of Stockholm, Sweden, represented by CSC Digital Brand Services AB, Sweden.
The Respondent is Oscar Ferley Orozco of Valencia, Spain. 2. The Domain Name and Registrar
The disputed domain name is registered with 1&1 Internet AG (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 8, 2014. On April 8, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 10, 2014, 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 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 April 15, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was May 5, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default.
The Center appointed Angela Fox as the sole panelist in this matter on May 14, 2014. 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. Its name is also one of its major brands; it uses the ELECTROLUX trademark in respect of a wide range of household and kitchen appliances, including vacuum cleaners, refrigerators, dishwashers, washing machines and cookers. The Complainant sells some 40 million products each year to consumers in 150 different countries, including in Spain, where the Respondent is based, and also provides after-sales and repair services for its ELECTROLUX branded products. It is one of the market leaders in many of the individual product categories in which it competes, and in 2013 alone, the Complainant had sales of SEK 109 billion and employed 60,800 people.
The ELECTROLUX trademark enjoys a high profile and the Complainant filed documents evidencing that ELECTROLUX was included in the “Superbrands 2014” list of the world’s best-known brands, and was ranked number 46 on the RepTrak™ “100: The World's Most Reputable Companies” list for 2013.
The Complainant is the proprietor of trademark registrations for ELECTROLUX and marks including ELECTROLUX in respect of household and kitchen appliances in countries throughout the world. Attached to the Complaint were details of a number of these, including Community Trademark registration no. 77925 for the word mark ELECTROLUX in Classes 3, 7, 8, 9, 11, 16, 20, 21, 35 and 37, filed on April 1, 1996 and registered on September 16, 1998.
The disputed domain name was registered on June 15, 2009. It has been in use for a website, in Spanish language, offering repair services for household and kitchen appliances in the Valencia region of Spain. The Complainant’s ELECTROLUX branding including a stylised ELECTROLUX logo used by the Complainant appears prominently on the website at the disputed domain name. The website is not linked to, affiliated with or authorised by the Complainant. There is no indication of that, however, on the website.
On February 19, 2014 the Complainant wrote to the Respondent notifying it of the Complainant’s rights and requesting the voluntary transfer of the disputed domain name. No reply was ever received. 5. Parties’ Contentions A. Complainant
The Complainant submits that the disputed domain name is confusingly similar to its ELECTROLUX trademark. It incorporates the ELECTROLUX trademark entirely and the remaining words, “serviciotecnicovalencia” are descriptive, serving only to denote technical services relating to ELECTROLUX products, provided in the Valencia region of Spain.
The Complainant also submits that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has not authorised the Respondent to use the ELECTROLUX trademark, nor are the Respondent’s activities authorised by or affiliated with the Complainant. The disputed domain name is in use for a website offering repair services for the Complainant’s ELECTROLUX branded products, but the Complainant submits that the Respondent’s website is misleading since it uses the Complainant’s ELECTROLUX logo and does not make it clear that there is in fact no relationship between the Respondent’s services and the Complainant. Finally, the Complainant submits that the disputed domain name was registered and has been used in bad faith. The Complainant argues that the Complainant’s trademark is well-known and that the website at the disputed domain name indicates that the Respondent was clearly aware of the Complainant’s brand at the time it registered the disputed domain name. In the Complainant’s submission, by registering and using the disputed domain name the Respondent is misleading Internet users into believing that the Respondent is in some way connected to, sponsored by, affiliated with or endorsed by the Complainant and its business. B. Respondent
The Respondent did not reply to the Complainant’s contentions and is in default. No exceptional circumstances explaining the default have been put forward. Therefore, in accordance with paragraphs 14(a) and (b) of the Rules, the Panel will decide on the Complaint and shall draw such inferences as it considers appropriate from the Respondent’s default. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, a complainant can only succeed in an administrative proceeding under the Policy if the panel finds that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(ii) the respondent has no rights or legitimate interests in the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
All three elements must be present before a complainant can succeed in an administrative proceeding under the Policy. A. Identical or Confusingly Similar
The Complainant has proved ownership of registered trademark rights in ELECTROLUX.
The disputed domain name contains the whole of the Complainant’s registered trademark, differing only in the addition of the words “serviciotecnicovalencia” and the non-distinctive generic Top-Level Domain suffix “.com”. The words “servicio tecnico” in Spanish mean “technical services” and “Valencia” is the name of a region in Spain. When used in connection with the Complainant’s ELECTROLUX trademark, the disputed domain name as a whole is likely to be taken by Internet users as denoting a website offering technical and after-sales services relating to the Complainant’s ELECTROLUX products in the Valencia region of Spain.
The additional non-distinctive elements within the disputed domain name are not, therefore, sufficient to distinguish it from the Complainant’s trademark; indeed, on the contrary, their presence is likely to increase the risk that Internet users will be confused into associating the disputed domain name with the Complainant and its ELECTROLUX brand.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s registered ELECTROLUX trademark. B. Rights or Legitimate Interests
The materials annexed to the Complaint show that the Respondent has used the disputed domain name to host a website offering technical and after-sales services for the Complainant’s ELECTROLUX branded products in the Valencia region of Spain. The website at the disputed domain name uses the Complainant’s stylised ELECTROLUX logo, but does not disclose that the Respondent has no connection with the Complainant, and is not authorised or endorsed by the Complainant to offer approved technical or after-sales services in relation to ELECTROLUX-branded products.
The WIPO Overview of WIPO Panel Views on Selected UDRP Questions (“WIPO Overview 2.0”) confirms the majority view at paragraph 2.3 that a reseller or distributor, whether authorised or unauthorised, can be making a bona fide offering of goods and services and thus have a legitimate interest in a domain name if its use meets certain requirements, including the actual offering of goods and services at issue, the use of the site to sell only the trademarked goods, and the site’s accurately and prominently disclosing the registrant's relationship with the trademark holder (see, inter alia, Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903).
In this case, the Respondent is an unauthorised provider of after-sales services for ELECTROLUX branded products, but its website does not disclose the nature of its relationship, or more precisely the fact that there is no relationship, with the Complainant. This is a notable omission given that the prominent use of the Complainant’s trademark logo on the Respondent’s website strongly suggests that there is such a connection. The Respondent’s activities overall suggest a desire to create the impression of a link with the Complainant with a view to attracting customers for its repair services.
In light of these factors, the Respondent’s use is not in the Panel’s view a bona fide offering of services within the meaning of paragraph 4(c)(i) of the Policy. The disputed domain name is inherently likely to mislead Internet users into believing that the website linked to it is in some way associated with, approved or endorsed by the Complainant, and the Respondent has made no effort to dispel that impression. Indeed, by its unauthorised use of the Complainant’s branding it has if anything sought to reinforce it.
The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
Under paragraph 4(b)(iv) of the Policy, a panel may find both registration and use of a domain name in bad faith where there is evidence that, by using it, a respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the complainant’s trademarks as to the source, sponsorship, affiliation, or endorsement of the linked website.
Given the nature of the services offered on the Respondent’s website, the Panel finds that the Respondent clearly registered the disputed domain name in the knowledge of the Complainant and its ELECTROLUX trademark. The disputed domain name is inherently likely to attract Internet users looking for a website relating to the Complainant and its products and related services, and Internet users are inherently likely to visit the Respondent’s website expecting to find repair services that are provided by, authorised or endorsed by the Complainant. Once there, there is nothing on the website to dispel that assumption. Where Internet users purchase the Respondent’s services as a result, the Respondent profits from that confusion.
The Panel concludes that the Respondent has used the disputed domain name in an intentional effort to attract Internet users, for commercial gain, by creating a likelihood of confusion with the Complainant and its ELECTROLUX trademark.
The Panel finds that the disputed domain name was registered and is being used in bad faith under paragraph 4(b)(iv) of the Policy. 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.
Angela Fox
Sole Panelist
Date: June 5, 2014
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