The Complainant is AB Electrolux of Stockholm, Sweden, represented by CSC Digital Brand Services AB, Sweden.
The Respondent is Domain Admin, of Istanbul, Turkey / Omer Akkan of Istanbul, Turkey. 2. The Domain Names and Registrar
The disputed domain names and are registered with FBS Inc.(the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on December 1, 2014. On December 1, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On December 8, 2014, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 8, 2014, 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 December 8, 2014.
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 December 15, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was January 4, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on January 5, 2015.
The Center appointed Gökhan Gökçe as the sole panelist in this matter on January 22, 2015. 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, AB Electrolux, is a Swedish joint stock company founded in 1901 and one of the world's leading producers of appliances and equipment for kitchen and cleaning. The Complainant is the owner of the registered trademarks ELECTROLUX and AEG in several classes in many countries, including Turkey. A list of these trademark registrations is attached to the Complaint. The Complainant has several registered trademarks in Turkey for the terms "electrolux", "aeg" and other derivative trademarks.
The disputed domain names were registered on July 9, 2014. The Panel visited the disputed domain names on February 5, 2015, and observed that the disputed domain names are inactive. 5. Parties' Contentions A. Complainant
In accordance with paragraph 4(b)(i) of the Policy, the Complainant requests that the disputed domain names be transferred to the Complainant. The Complainant submits the grounds for these proceedings listed in paragraph 4(a) of the Policy. Identical or Confusingly Similar
The Complainant asserts that the disputed domain names comprise the words "electrolux" and "aeg" which are identical to its registered trademarks ELECTROLUX and AEG. The Complainant states that the fame of ELECTROLUX and AEG has been confirmed in previous UDRP decisions and asserts that the addition of "servisi" which means "service" in English and the addition of a generic top-level domain, ".com", does not have an impact on the overall impression of the dominant part of the disputed domain names and does not exclude the likelihood of confusion. Rights or Legitimate Interests
The Complainant asserts that the Respondent does not have any registered trademarks or trade names that correspond to the disputed domain names, nor is the Respondent a licensee of the Complainant. The Complainant has not given the Respondent any permission to register its trademark as a domain name. Further, the Complainant asserts that the Respondent is not an authorized dealer of its products, and has no business relationship with it, a factor that establishes an absence of a right or legitimate interest on the part of the Respondent.
The Complainant further asserts that there is no evidence that the Respondent is using the disputed domain names in connection with a bona fide offering of goods or services and that the Respondent is not commonly known by the disputed domain names. The Complainant asserts that the disputed domain names are connected to two websites offering repair services and technical support for the Complainant's products, one focusing on services relating to the AEG trademark and the other focusing on the ELECTROLUX trademark.
Further, the Complainant submits that the Respondent does not qualify under the criteria laid down in Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903. The Complainant asserts that the Respondent does not adequately disclose the non-existence of any relationship between the Respondent and the Complainant, nor are there any visible disclaimers that the relevant websites are not endorsed or sponsored by the Complainant; and finally there is a copyright text displayed at the bottom of the websites. Further, the Complainant asserts that the Respondent is using the Complainant's products and logotype. Registered and Used in Bad Faith
The Complainant contends that the trademarks ELECTROLUX and AEG have the status of reputed trademarks with a substantial and widespread reputation. The Complainant asserts that the disputed domain names resolve to websites offering services for Electrolux and AEG products, and that the Respondent is thus using the disputed domain names to intentionally attempt to attract, for commercial gain, Internet users to its websites, by creating a likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the websites. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings 6.1. Language of the Proceedings
Under paragraph 11(a) of the Rules, unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceedings shall be the language of the Registration Agreement. In the present case, the language of the Registration Agreement is Turkish.
The Complainant submitted its Complaint in English and requested the language of the proceedings to be English. The Respondent has not submitted any comments in this regard despite having been given the opportunity. The Center notified the commencement of the administrative proceeding in both English and Turkish. In these circumstances, and taking into account the Respondent's default, the Panel concludes that, in accordance with paragraph 11(a) of the Rules, it is appropriate in this case to determine that the language of the proceedings be English, Inter-IKEA Systems B.V. v. SC Agis International Sport S.R.L,WIPO Case No. DRO2006-0001.
Therefore, the Panel has decided to accept the Complainant's filings in English and issue a decision in English. 6.2. Substantive Elements of the Policy
As the Respondent has not filed a Response, the Panel may decide the dispute based on the Complaint and may accept all factual allegations as true. The Panel may also draw appropriate inferences from the Respondent's default. Talk City, Inc. v. Michael Robertson,WIPO Case No. D2000-0009. A. Identical or Confusingly Similar
The Policy simply requires the Complainant to demonstrate that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights. The Panel is satisfied that the Complainant is the owner of the trademarks ELECTROLUX and AEG as evidenced in the annexes to the Complaint.
In relation to the disputed domain names, it is clear that the disputed domain names fully incorporate the Complainant's trademarks and the only difference between the disputed domain names and the Complainant's trademarks is the addition of the words "servisi" and the ".com" extension.
The Panel is in the opinion that the addition of the word "servisi", which means "service", does not negate the confusing similarity with the Complainant's trademarks. On the contrary, the nature of the generic terms used would tend to reinforce consumers' erroneous conclusion that the websites to which the disputed domain names resolve are somehow legitimately included in the supply and service system established by the Complainant under its ELECTROLUX and AEG trademarks, Aktiebolaget Electrolux v. Ibrahim Yurtcu, WIPO Case No. D2013-0796.
The Panel further finds that the addition of the ".com" extension is irrelevant when determining whether the disputed domain name is confusingly similar to the Complainant's trademark, PRL USA Holdings, Inc. v. Spiral Matrix,WIPO Case No. D2006-0189. It has been stated in several decisions by other UDRP panels that the incorporation of a trademark in its entirety into a domain name may be sufficient to establish that the domain name is identical or confusingly similar to a registered trademark, Bayerische Motoren Werke AG, Sauber Motorsport AG v. Petaluma Auto Works,WIPO Case No. D2005-0941. The Panel recognizes the Complainant's rights and concludes that the disputed domain names are confusingly similar with the Complainant's ELECTROLUX and AEG trademarks.
The Panel finds that the requirements of paragraph 4(a)(i) of the Policy are fulfilled. Consequently, the Panel finds for the Complainant on the first element of the Policy. B. Rights or Legitimate Interests
In accordance with paragraph 4(a)(ii) of the Policy, the Complainant must prove that the Respondent has no rights or legitimate interests in respect of the disputed domain names. It is established in numerous UDRP decisions that it is difficult for a complainant to prove a negative and for that reason the complainant is required to make out an initial prima facie case that the respondent lacks rights or legitimate interests in a domain name, Belupo d.d. v. WACHEM d.o.o ,WIPO Case No. D2004-0110. Once the complainant makes a prima facie case, the burden of demonstrating rights or legitimate interests in the disputed domain name shifts to the respondent. The Policy at paragraph 4(c) provides various ways in which the respondent may demonstrate rights or legitimate interests in a domain name. If the respondent fails to do so, the complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy.
The Complainant contends that the Respondent does not have any rights or legitimate interests in the disputed domain names; the Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services, the Respondent is not commonly known by the disputed domain names and the Respondent is not making a legitimate noncommercial or fair use of the disputed domain names.
The Panel finds that there is no evidence to suggest that the Respondent has any rights in any trademarks or service marks which are identical, similar or related to the disputed domain names. The Panel accepts that the Respondent is not commonly known by the disputed domain names, even if the Respondent has acquired no trademark or service mark rights.
Pursuant to Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903, in order for a reseller to be regarded as having a legitimate interest in registering a domain name which incorporates the complainant's trade mark, (i) the respondent should actually be offering the complainant's goods or services via the website attached to the disputed domain name, (ii) the respondent must use the site to sell only the trade marked goods, (iii) the site must accurately disclose the respondent's relationship with the trade mark owner and (iv) the respondent should not try to corner the market in domain names which incorporate the complainant's trade mark.
In our case, the Complainant submitted screen shots of web sites dated November 28, 2014 which show that the disputed domain names resolve to a website in Turkish that offers services for Electrolux and AEG products and contains the Complainant's trademarks, logo and copyrighted material. The Respondent provides private repair services for the ELECTROLUX and AEG brands, when evaluated together with the trademarks, logos and copyrighted material used and expressions such as "İstanbul Electrolux Beyaz Eşya Bölge Servis Arıza Kayıt Merkezi" ("İstanbul Electrolux White Goods Regional Service Failure Registry Center") and "İstanbul Aeg Beyaz Eşya Bölge Servis Arıza Kayıt Merkezi" ("İstanbul Aeg White Goods Regional Service Failure Registry Center"), the Respondent clearly suggests a business relationship with the Complainant. Therefore, the Panel finds that the disclaimer does not accurately disclose the relationship between the Respondent and the Complainant and the Respondent is not making use of the disputed domain names in connection with a bona fide offering of goods or services.
The websites associated with the disputed domain names are commercial websites used for the promotion of technical services offered by the Respondent. Therefore, the Panel infers that there is no intention of legitimate noncommercial or fair use of the disputed domain names, without intent for commercial gain or to misleadingly divert consumers.
Paragraph 4(a)(ii) requires the Complainant to prove that the Respondent has no rights or legitimate interests in the disputed domain names. The Complainant has established a prima facie case that the Respondent lacks a right or legitimate interest in the disputed domain names. The Respondent did not submit a response. In light of the above, the Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain names.
The requirements of paragraph 4(a)(ii) of the Policy are fulfilled and, consequently, the Panel finds in favor of the Complainant on the second element of the Policy. C. Registered and Used in Bad Faith
Finally, the Complainant must show that the disputed domain names have been registered and are being used in bad faith under paragraph 4(a)(iii) of the Policy.
Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances that, if found by a panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent's documented out-of-pocket costs directly related to the domain name; or
(ii) the 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) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent's website or other on-line location, by creating a likelihood of confusion with the 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 Complainant's trademarks ELECTROLUX and AEG were registered and used before the Respondent's registration of the disputed domain names and the reputation of the Complainant's trademarks ELECTROLUX and AEG in the field of appliances and equipment for kitchen and cleaning is clearly established. Further the Respondent's websites associated with the disputed domain names contain the ELECTROLUX and AEG trademarks and logos. Therefore, the Respondent was aware of the Complainant's trademarks ELECTROLUX and AEG at the time the disputed domain names were registered. The Panel, in accordance with previous decisions issued under the Policy, is of the opinion that actual knowledge of the Complainant's trademark at the time of registration of the disputed domain names are to be considered as an inference of bad faith, Parfums Christian Dior v. Javier Garcia Quintas and C,WIPO Case No. D2000-0226.
Further, the fact that the Respondent's websites use the Complainant's trademarks ELECTROLUX and AEG in connection with offering services related to the Complainant's goods suggests that by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website and other online location, by creating a likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation, or endorsement of the Respondent's websites.
After examining all circumstances surrounding the registration and use of the disputed domain names, the Panel finds that the Respondent registered and is using the disputed domain names in bad faith. Accordingly, the Panel finds in favor of the Complainant on the third element 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 names and be transferred to the Complainant.
Gökhan Gökçe
Sole Panelist
Date: February 5, 2015
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