The Complainant is Aktiebolaget Electrolux of Stockholm, Sweden, represented by CSC Digital Brand Services AB, Sweden.
The Respondent is Zafer Gurbulak, Gurbulak A.S. of Ankara, Turkey. 2. The Domain Names and Registrar
The disputed domain names:
are registered with Reg2C.com Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 17, 2014. On December 18, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On December 29, 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 sent a Language of Proceeding communication to the parties on December 29, 2014. The Complainant replied on December 29, 2014.
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 January 12, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was February 1, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 2, 2015.
The Center appointed Gökhan Gökçe as the sole panelist in this matter on February 11, 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 AEG and FRIGIDAIRE in several classes in many countries, including Turkey. A list of these trademark registrations was attached to the Complaint.
The disputed domain name was registered on May 17, 2013; was registered on October 8, 2013; , , , , , , , , , , , and were registered on July 14, 2014, and were registered on March 19, 2014.
The Panel visited the disputed domain names on February 24, 2015, and observed that the disputed domain names are used in connection with Turkish-language websites offering repair services for the Complainant’s AEG and Frigidaire products. The websites include a disclaimer noting that all logos are the property of the related company. 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 “aeg” and “frigidaire” which are identical to its registered trademarks AEG and FRIGIDAIRE. The Complainant states that the fame of AEG and FRIGIDAIRE has been confirmed in previous UDRP decisions and asserts that the addition of “servis” which means “service” in English, the addition of a geographical location in Turkey and the addition of a generic Top-Level Domain (“gTLD”), “.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 websites offering repair services for AEG and FRIGIDAIRE house hold products.
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. The Complainant asserts that there is no prominent disclaimer on the site and at the very bottom of the site, there is vague reference stating “Logos are registered and belong to their respective companies”. The Complainant states that said statement does not go far enough, and does not explain that the Respondent has no affiliation with the Complainant, but rather the Respondent keeps referring to itself and its business as clearly conveying the false impression that the Respondent is an authorized service provider of the Complainant’s products. Registered and Used in Bad Faith
The Complainant contends that the trademarks AEG and FRIGIDAIRE 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 AEG and FRIGIDAIRE 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 AEG and FRIGIDAIRE as evidenced in the annexes to the Complaint.
The Panel is of the opinion that the addition of the Turkish words “servis” or “servisi” or “teknikservis” and geographical indicators such as “ankara”, which is a city in Turkey, or its neighborhoods, does not negate the confusing similarity between the Complainant’s trademarks and the disputed domain names. “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”, Aktiebolaget Electrolux v. Ibrahim Yurtcu, WIPO Case No. D2013-0796.
The Panel further finds that the addition of gTLDs such as “.com”, “.org” or “.net” may be disregarded when determining whether the disputed domain names are 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 often 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 trademark rights and concludes that the disputed domain names are identical and confusingly similar with the Complainant’s AEG and FRIGIDAIRE 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 and 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 trademark, (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 trademarked goods, (iii) the site must accurately disclose the respondent’s relationship with the trademark owner and (iv) the respondent should not try to corner the market in domain names which incorporate the complainant’s trademark.
In this case, the disputed domain names resolve to websites in Turkish that offer services for AEG and FRIGIDAIRE products and contain the Complainant’s trademarks. The Respondent provides private repair services for the AEG and FRIGIDAIRE brands, when evaluated together with the trademarks and expressions such as “AEG ÖZEL ÇAĞRI MERKEZİ” (AEG Special Call Center”) or “FRIGIDAIRE ÖZEL ÇAĞRI MERKEZİ” (“Frigidaire Special Call Center”), the Respondent clearly suggests a business relationship with the Complainant. The websites include a disclaimer noting that all logos are the property of the related company. However 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 AEG and FRIGIDAIRE were registered and used before the Respondent’s registration of the disputed domain names and the reputation of the Complainant’s trademarks AEG and FRIGIDAIRE 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 AEG and FRIGIDAIRE trademarks. Therefore, the Respondent was aware of the Complainant’s trademarks AEG and FRIGIDAIRE 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 here actual knowledge of the Complainant’s trademarks at the time of registration of the disputed domain names is 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 AEG and FRIGIDAIRE in connection with offering services related to the Complainant’s goods suggests that by using the disputed domain names, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its websites 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 26, 2015
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