The Complainant is Aktiebolaget Electrolux of Stockholm, Sweden, represented by CSC Digital Brand Services AB, Sweden.
The Respondent is linyanxiao of Guangzhou, Guangdong Province. 2. The Domain Name and Registrar
The disputed domain name is registered with Hangzhou AiMing Network Co., LTD (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 3, 2014. On July 4, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 7, 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. On July 7, 2014, the Center sent an email communication to the parties in both 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. On July 10, 2014, the Respondent requested Chinese be the language of the proceeding.
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 in both Chinese and English, and the proceeding commenced on July 14, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was August 3, 2014. The Respondent did not file a Response. Accordingly, the Center notified the Respondent's default on August 4, 2014.
The Center appointed Susanna H.S. Leong as the sole panelist in this matter on August 6, 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 joint stock company founded in 1901 and registered as a Swedish company in 1919. It is a world leading producer of appliances and equipment for kitchen and cleaning.
The Complainant trades under the brand Electrolux as well as under other brands and sells 40 million products to consumers living in 150 different countries every year. Consequently, the Complainant has registered the trademarks ELECTROLUX as word and figure marks in several classes in more than 150 countries all over the world. The Complainant has also registered the trademark ELECTROLUX as a domain name under almost 700 gTLDs and ccTLDs worldwide, among these; .
The Respondent has registered the disputed domain name on July 14, 2013. 5. Parties' Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights on the following grounds:
A.1. The Complainant is the owner of the world wide registered trademark ELECTROLUX.
1) The Respondent has registered the disputed domain name which is confusingly similar to the trademark owned by the Complainant.
2) The addition of the suffix "group" will not have any impact on the overall impression of the dominant part of the disputed domain name, "Electrolux", instantly recognizable as a world famous trademark. Considering the Complainant is frequently referred to as "Electrolux Group", said suffix is rather fitted to strengthen the impression that the disputed domain name is connected to, or authorized by, the Complainant.
3) With reference to the reputation of the trademark ELECTROLUX there is a considerable risk that the public will perceive the disputed domain name either as a domain name owned by the Complainant or that there is some kind of commercial relation with the Complainant.
A.2. The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name on the following grounds:
1) The Respondent does not have any registered trademarks or trade names corresponding to the disputed domain name. It is also clear, that no license or authorization of any other kind, has been given by the Complainant to the Respondent, to use the trademark.
2) The Respondent is not an authorized dealer of the Complainant's products and has never had a business relationship with the Complainant.
3) The mere registration of a domain name does not give the Respondent a right or a legitimate interest in respect of the disputed domain name.
4) There is no evidence which suggests that the Respondent has been using Electrolux in any other way that would give its any rights or legitimate interests in the disputed domain name. Consequently the Respondent may not claim any rights established by common usage.
5) The Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services. Instead, the disputed domain name is currently offered for sale through the website.
A.3. The Complainant contends that the disputed domain name was registered and is being used in bad faith on the following grounds:
1) The trademark ELECTROLUX belonging to the Complainant has the status of a well-known and reputed trademark with a substantial and widespread reputation throughout the whole community and throughout the world. The awareness of the trademark is to be considered, in the whole community in general, to be significant and substantial.
2) The Complainant contacted the Respondent on April 16, 2014 through a cease and desist letter, sent by email to the address listed in the WhoIs and advised the Respondent that the unauthorized use of the ELECTROLUX trademark within the disputed domain name infringed the Complainant's rights in the said trademark. The Complainant requested a voluntary transfer of the disputed domain name and offered compensation for the expenses of registration and transfer fees (not exceeding out of pocket expenses). Despite two reminders sent, no response was ever received. On June 24, 2014, the Complainant also sent the letter along with the reminders, to the email address listed on the website. No reply was received to that communication either. Since the efforts of trying to solve the matter amicably were unsuccessful, the Complainant chose to file a Complaint according to the UDRP process. The Complainant contends that failure of the Respondent to respond to the letter of demand from the Complainant further supports an inference of bad faith.
3) The disputed domain name is currently connected to a website offering the disputed domain name for sale. Consequently, the Respondent is using the disputed domain name to intentionally attempt to attract, for commercial gain, Internet users to the website, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of the website, as stated in paragraph 4(b)(iv) of the Policy.
4) The Complainant contends that the Respondent knew of the Complainant's famous ELECTROLUX trademark and has registered and is using the disputed domain name in order to confuse and divert Internet traffic to its website, based upon the following circumstances: (a) the disputed domain name is well-known, unique and specific to the Complainant; (b) there is no apparent connection between the disputed domain name and the Respondent's website or its content; (c) there is no other apparent legitimate justification for the Respondent's registration and use of the disputed domain name for its website; and (d) the Respondent has not denied any knowledge of the Complainant or its trademark. In addition, the Panel draws an adverse inference from the Respondent's failure to provide any explanation or rationale for its use of the disputed domain name for its website. B. Respondent
On July 10, 2014, the Center received an email communication from the Respondent requesting Chinese be the language of the proceeding. However, the Respondent did not give any substantial response to the Complainant's contentions. 6. Discussion and Findings 6.1. Language of the Proceeding
According to the information received by the Center from the Registrar, the language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. From the evidence presented in the case file, no agreement appears to have been entered into between the Complainant and the Respondent to the effect that the proceeding should be in English. Complying with the instructions from the Center, the Complainant has submitted a request that the proceeding should be in English. The Respondent has submitted an email requesting Chinese to be the language of the proceeding.
After considering the circumstances of the present case and the submission of the Complainant's request, the Panel is of the opinion that the language of the present proceeding shall be English and the decision will be rendered in English. The Panel based its decision on the following reasons:
(i) The Panel's discretion under the Policy
Paragraph 11(a) of the Rules provides:
"Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding."
Thus, the parties may agree on the language of the proceeding. In the absence of an agreement, the language of the registration agreement shall dictate the language of the proceeding. However, the panel has the discretion to decide otherwise having regard to the circumstances of the case. The panel's discretion must be exercised judicially in the spirit of fairness and justice to both parties taking into consideration matters such as command of the language, time and costs. It is important that the language finally decided by the panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.
(ii) The circumstances of this proceeding
One important consideration is the issue of fairness to both parties in their abilities to prepare the necessary documents for this proceeding and also to respond adequately to these documents when they are served upon the parties.
In particular, the Panel notes that the material facts of this proceeding are generated in the English language. In particular, the Panel notes that (a) the disputed domain name is made up of letters in Ascii-Script and could be pronounced phonetically in English; (b) the some texts on the website is in English; and (c) the Center has notified the Respondent of the proceeding in both Chinese and English. The Respondent had a choice to respond to the Complaint in either Chinese or English as the Panel who has been appointed by the Center is conversant in both languages. However, the Respondent has chosen not to respond to the Complainant's allegations. Considering these circumstances, the choice of English as the language of the present proceeding is fair to both parties and is not prejudicial to either one of the parties in his or her ability to articulate the arguments for this case.
In considering the circumstances of the present case, the Panel decides that the language of the proceeding shall be English and the decision will be rendered in English. 6.2. Substantive Elements of the Policy
In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding and obtain the transfer of the disputed domain name, the Complainant must establish that each of the three following elements is satisfied:
(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 respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy clearly states that the burden of proof lies with the Complainant to establish that all these three elements are satisfied in this proceeding.
Furthermore, pursuant to paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Moreover, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under the Rules of any request from the Panel, the Panel shall draw such inferences therefrom, as it deems appropriate.
On the basis of the evidence introduced by the Complainant and in particular with regard to the content of the relevant provisions of the Policy (paragraphs 4(a), (b), (c)), the Panel concludes as follows: A. Identical or Confusingly Similar
The Complainant has adduced evidence to demonstrate that it has registered trademark rights and continues to have such rights in the ELECTROLUX marks in connection with appliances and equipment for kitchen and cleaning in many countries in the world. Furthermore, the Panel finds that the Complainant has registered trademark rights in the ELECTROLUX marks in China, the country in which the Respondent appears to reside. The Panel finds that the Complainant's ELECTROLUX trademark is well-known in connection with appliances and equipment for kitchen and cleaning offered by the Complainant in many countries as well as in China.
In assessing the degree of similarity between the Complainant's trademark and the disputed domain name, the Panel shall have regard to the degree of visual, aural or conceptual similarity between them and where appropriate, evaluate the importance to be attached to these different elements. The issue of degree of similarity between the Complainant's trademark and the disputed domain name is to be considered from the perspective of the average consumer of the goods or services concerned in this case, and the average consumer is the Internet users seeking to purchase or download information about the Complainant's products.
The disputed domain name consists of the Complainant's ELECTROLUX trademark in its entirety with the addition of the term "group" and the generic Top Level Domain (gTLD) suffix ".com". The Panel is of the view that the most prominent and distinctive part of the disputed domain name is the word "electrolux" which is identical to the Complainant's registered trademark ELECTROLUX. Given the fame and notoriety of the Complainant's ELECTROLUX marks, the addition of the term "group" does not provide sufficient distinction from the Complainant's trademark. Furthermore, it is also an accepted principle that the addition of suffixes such as ".com" being the gTLD is not typically a distinguishing factor.
Bearing in mind the following factors, in particular the distinctive character of the Complainant's ELECTROLUX trademark and the dominant component of the disputed domain name, the Panel therefore finds that the disputed domain name is confusingly similar to the ELECTROLUX trademark in which the Complainant has rights.
The Panel finds for the Complainant on the first part of the test. B. Rights or Legitimate Interests
Based on the following reasons, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name:
1) The Respondent has not provided evidence of a legitimate use of the disputed domain name or reasons to justify the choice of the term "electroluxgroup" in its business operations;
2) There was no evidence to show that the Complainant has licensed or otherwise permitted the Respondent to use its trademark or to apply for or use any domain name incorporating the ELECTROLUX trademark;
3) There is no indication whatsoever that the Respondent is commonly known by the disputed domain name and/or is using the disputed domain name in connection with a bona fide offering of goods or services;
4) On the contrary, the disputed domain name is currently connected to a website offering the disputed domain name for sale. The Panel finds that the Respondent therefore does not have the right to use ELECTROLUX marks in the disputed domain name. Such a behaviour on the part of the Respondent clearly shows that it is not using the disputed domain name in connection with a bona fide offering of goods or services and that the Respondent has no rights or legitimate interests in the disputed domain name.
5) The Complainant and its ELECTROLUX trademark enjoy a widespread reputation and high degree of recognition as a result of its fame and notoriety in connection with appliances and equipment for kitchen and cleaning and is a registered trademark in many countries all over the world, including China. Consequently, in the absence of contrary evidence from the Respondent, the ELECTROLUX trademark is not one that traders could legitimately adopt other than for the purpose of creating an impression of an association with the Complainant.
The Panel notes the overall burden of proof on this element rests with the Complainant. However, it is well established by previous UDRP decisions that once a complainant establishes a prima facie case that a respondent lacks rights or legitimate interests in a domain name, the burden of production shifts to the respondent to rebut the complainant's contentions. (See the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 2.1). Based on the above reasons, the Complainant has therefore established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name and thereby shifted the burden of production to the Respondent to produce evidence to rebut this presumption.
According to paragraph 4(c) of the Policy, a respondent may establish its rights or legitimate interests in a domain name, among other circumstances, by showing any of the following elements:
"(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue."
The Panel notes that the Respondent has not provided evidence of circumstances of the type specified in paragraph 4(c) of the Policy, or evidence of any other circumstances giving rise to a right to or legitimate interest in the disputed domain name. The Panel further notes that the Respondent has failed to submit a Response to the Complaint filed against it. In particular, the Respondent has failed to make submissions to demonstrate that it has rights or legitimate interests in the disputed domain name.
In accordance with the Rules, paragraph 14, the Panel thus draws such inferences as it considers appropriate, which are that the Complainant has therefore established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the Respondent has not adduced evidence of any rights or legitimate interests in the disputed domain name.
The Panel finds for the Complainant on the second part of the test. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the domain name in bad faith, namely:
(i) circumstances indicating that a respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to a complainant who is the owner of the trademark or service mark or to a competitor of the complainant, for valuable consideration in excess of the respondent's documented out-of-pocket costs directly related to the domain name; or
(ii) respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, a respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent's website or other online location, by creating a likelihood of confusion with a complainant's mark as to the source, sponsorship, affiliation, or endorsement of the respondent's website or location or of a product or service on the respondent's website or location.
The above circumstances are indicative of registration and use of the disputed domain name in bad faith but they are by no means exhaustive. Evidence of other circumstances adduced before the Panel can also constitute registration and use of the disputed domain name in bad faith by a respondent in appropriate cases.
One important consideration in the Panel's assessment of whether the Respondent has registered and used the disputed domain name in bad faith is prior knowledge on the part of the Respondent of the Complainant's rights in the trademark concerned. In this day and age of the Internet and advancement in information technology, the reputation of brands and trademarks often transcend national borders. Taking into account the worldwide reputation of the Complainant and its ELECTROLUX trademark, as well as the market presence of the Complainant in numerous countries including China, the Panel finds that it is highly unlikely that the Respondent would not have had actual notice of the Complainant's trademark rights at the time of the registration of the disputed domain name.
Furthermore, the Complainant has established a substantial presence on the Internet. The Complainant has also registered almost 700 gTLDs and country cold Top Level Domains (ccTLDs) worldwide which incorporate the trademark ELECTROLUX as a domain name, amongst them is . A simple search on the Internet would reveal the presence of the Complainant's trademark and domain names. Therefore, the Panel finds that it is not conceivable that the Respondent would not have had actual notice of the Complainant's trademark rights at the time of the registration of the disputed domain name in 2013. Consequently, it would have been pertinent for the Respondent to provide an explanation of its choice in the disputed domain name, failing which the Panel draws the conclusion that the disputed domain name was registered in bad faith with intent to create an impression of an association with the Complainant and its products.
Where the Respondent has chosen to register a disputed domain name that is identical or confusingly similar to the Complainant's trademark and where the trademark in question has through substantial use acquired worldwide fame, reputation and notoriety, a reasonable conclusion is that the trademark is not one that traders could legitimately adopt other than for the purpose of creating an impression of an association with the Complainant. Thus, the Respondent may show that the choice of the disputed domain name was made legitimately and in good faith for the genuine offering of goods or services on the Internet. In this case, there is no evidence that the Respondent has used or intends to use to the disputed domain name for purposes of bona fide offering of goods and services over the Internet. On the contrary, the Respondent is using the disputed domain name to connect to a website offering the disputed domain name for sale. Such behaviour on the part of the Respondent is indicative of bad faith registration and use as per paragraph 4(b)(i) of the Policy. The Respondent could have explained its choice of the disputed domain name and its subsequent conduct. However, the Respondent did not do so and the Panel was not provided with any plausible explanation.
The Panel finds that the Complainant has adduced evidence and proved that by using a confusingly similar disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent's website in accordance with paragraph 4(b)(iv) of the Policy. The Panel finds that given the widespread fame of the Complainant's ELECTROLUX trademark and a lack of plausible explanation for the choice of incorporating the Complainant's well-known trademark in the disputed domain name, the conduct of the Respondent in using the disputed domain name to connect to a website offering the disputed domain name for sale and the inference that the Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of the Complainant, for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly related to the disputed domain name, are certainly relevant factors indicating bad faith registration and use.
Thus, the Panel finds for the Complainant on the third part of the test. 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.
Susanna H.S. Leong
Sole Panelist
Date: August 20, 2014
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