The Complainant is AB Electrolux of Stockholm, Sweden, represented by BrandIT Legal AB, Sweden.
The Respondent is Zhang Yu Han of Beijing, China / YinSi BaoHu Yi KaiQi (Hidden by Whois Privacy Protection Service) of Beijing, China. 2. The Domain Name and Registrar
The disputed domain name is registered with HiChina Zhicheng Technology Ltd. (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 15, 2015. On June 15, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 16, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on June 17, 2015 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 June 18, 2015.
On June 17, 2015, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On June 18, 2015, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding by the specified due date.
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 June 26, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was July 16, 2015. The Respondent did not submit any response save for an email communication dated June 18, 2015 which is not substantive. The Center notified the parties that it would proceed to the Panel Appointment process on July 17, 2015
The Center appointed Sok Ling MOI as the sole panelist in this matter on July 24, 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 is a Swedish joint stock company founded in 1901, and is one of the world's leading producers of appliances and equipment for kitchen and cleaning products and floor care products with a worldwide presence. The ELECTROLUX brand is the Complainant's flagship brand for kitchen and cleaning appliances for both consumers and professional users.
The Complainant is the owner of numerous trade mark registrations for the trade mark ELECTROLUX worldwide. Among others, the Complainant is the owner of International Trade Mark Registration No. 836605 (designating China and other countries) - "ELECTROLUX and device" (registered since March 17, 2004), Chinese Trade Mark Registration No. 11314983 - "ELECTROLUX" (registered since January 7, 2014) and Chinese Trade Mark Registration No. 976005 - "伊莱乐思" (which is the Chinese name of ELECTROLUX) (registered since April 7, 1997).
The Complainant has also registered a number of domain names incorporating the trade mark ELECTROLUX, such as , registered on April 30, 1996 and , registered on June 6, 1998. These domain names are connected to the Complainant's website through which it informs potential customers about its ELECTROLUX trade mark, products and services.
The disputed domain name was registered on November 26, 2014, long after the Complainant has registered the trade mark ELECTROLUX worldwide. The disputed domain name resolves to a website which shows the ELECTROLUX trade mark and logo, and the offer of after-sales repair services for ELECTROLUX products. 5. Parties' Contentions A. Complainant
The Complainant is today a global leader in home and professional appliances, after 90 years of innovations and acquisitions since its origin in selling a single kind of vacuum cleaner. In 2014, the Complainant had sales of SEK 112 billion and employed about 60,000 employees. It is present in more than 150 countries.
The Complainant is the owner of trade mark ELECTROLUX and owns numerous trade mark registrations for ELECTROLUX in more than 150 countries worldwide, including China. The Complainant owns numerous domain names under various generic Top-Level Domains ("gTLD") and ccTLDs to reflect its trade mark ELECTROLUX. The ELECTROLUX mark is a well-known trade mark, as confirmed by previous UDRP decisions (see Aktiebolaget Electrolux v. Mister Manager,WIPO Case No. D2008-0823). A1. The disputed domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights:
The disputed domain name is confusingly similar to the Complainant's trade mark ELECTROLUX as it incorporates the trade mark as a whole, with the addition of the letters "wx" which can be attributed to the Complainant's WX series of fridge freezer.
The addition of the gTLD ".net" does not add any distinctiveness to the disputed domain name and should be disregarded. A2. The Respondent has no rights or legitimate interests in respect of the disputed domain name:
The Respondent has connected the disputed domain name to a website which prominently displays the Complainant's ELECTROLUX trade mark and logo, and has the look and feel of an official Electrolux website falsely suggesting a connection with the Complainant. It appears to be offering repair services. The Complainant has clear agreements with all its authorised partners, licensees and distributors to prohibit the registration of domain names incorporating the Complainant's trade mark. The Respondent is not an authorised partner, licensee or distributor.
Whilst there can be no objection to the Respondent advertising on its website that it offers repair services for ELECTROLUX products, the incorporation of term "electrolux" in the disputed domain name strongly suggests there is some official link with or authorisation by the Complainant for the repair of its products. No disclaimer is published on the Respondent's website. The Respondent has failed on at least three conditions established by the case of Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903 concerning the bona fide offering of goods or services within the meaning of paragraph 4(c) of the Policy, namely:
(i) the respondent must actually be offering the goods or services at issue;
(ii) the respondent must use the site to sell only the trademarked goods; otherwise, it could be using the trademark to bait Internet users and then switch them to other goods;
(iii) the site must accurately disclose the respondent's relationship with the trademark owner; it may not, for example, falsely suggest that it is the trademark owner, or that the website is the official site, if, in fact, it is only one of many sales agents;
(iv) the respondent must not try to corner the market in all domain names, thus depriving the trademark owner of reflecting its own mark in a domain name;
The Respondent has made no claims to having any relevant prior rights of its own, nor has it become commonly known by the name "electroluxxw". A3. The disputed domain name was registered and is being used in bad faith:
It is highly unlikely that the Respondent was unaware of the Complainant's rights in the trade mark ELECTROLUX at the point when it registered the disputed domain name. ELECTROLUX is a well-known trade mark in the home appliance industry throughout the world including in China.
The Respondent ignored the Complainant's cease and desist letters and communications to seek a voluntary transfer of the disputed domain name. Previous UDRP cases have considered the failure of a respondent to respond to a cease and desist letter or a similar attempt to establish contact, to be relevant in a finding of bad faith.
The Respondent is taking advantage of the fame of the ELECTROLUX trade mark to attract visitors to the Respondent's website by creating a likelihood of confusion with the Complainant's mark as to source, sponsorship, affiliation or endorsement of the Respondent's website or location. Nowhere on its website did the Respondent disclaim the non-existing relationship between itself and the Complainant.
For all of the above reasons, the Complainant requests the transfer of the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings 6.1. Language of the Proceeding
Pursuant to paragraph 11(a) of the Rules, 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.
Paragraph 10(b) and (c) of the Rules requires the Panel to ensure that the proceeding takes place with due expedition and that the parties are treated fairly and given a fair opportunity to present their respective case.
The language of the Registration Agreement for the disputed domain name is Chinese. From the evidence on record, no agreement appears to have been entered into between the Complainant and the Respondent regarding the language issue. The Complainant filed its Complaint in English and has requested that English be the language of the proceeding for the following reasons:
(a) The Complainant will be put through unnecessary trouble and the proceeding delayed if Chinese were made the language of the proceeding.
(b) The disputed domain name consists of Latin characters rather than Chinese characters.
(c) The Respondent has not replied to the cease and desist letter sent, nor responded to say it did not understand the content of the letter.
On the record, the Respondent appears to be a Chinese individual and is thus presumably not a native English speaker, but the Panel finds persuasive evidence to suggest that the Respondent has sufficient knowledge of English. In particular, the Panel notes that:
(a) the disputed domain name is registered in Latin characters, rather than Chinese script;
(b) the disputed domain name includes the Complainant's mark as well as the letters "wx" which can be attributed to the Complainant's WX series of fridge freezers;
(c) the Respondent has registered other domain names consisting of Latin characters, for example , and incorporating well-known brand names, based on a reverse WhoIs lookup which the Panel independently conducted;
(d) the Center has notified the Respondent of the proceeding in both Chinese and English;
(e) the Respondent has been given the opportunity to present her case in this proceeding and to respond to the issue of the language of the proceeding but has chosen not to do so; and
(f) the Center informed the Respondent that it would accept a Response in either English or Chinese.
Considering the above circumstances, the Panel finds 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.
The Panel has taken into consideration the fact that requesting the Complaint and all supporting documents to be re-filed in Chinese would in the circumstances of this case cause an unnecessary cost burden to the Complainant and unfairly disadvantage the Complainant. The proceeding would also be unnecessarily delayed.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that (i) it shall accept the Complaint and all supporting materials as filed in English; and (ii) English shall be the language of the proceeding and the decision will be rendered in English. 6.2 Discussion and Findings
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following three elements to obtain an order for the disputed domain name to be cancelled or transferred:
(i) the disputed domain name registered by the Respondent is identical or confusingly similar to a trade mark 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.
On the basis of the evidence introduced by the Complainant, the Panel concludes as follows: A. Identical or Confusingly Similar
The Panel accepts that the Complainant has rights in ELECTROLUX by virtue of its use and registration worldwide of the same as a trade mark. The disputed domain name incorporates the Complainant's trade mark ELECTROLUX in its entirety. The trade mark ELECTROLUX is clearly identifiable and is the prominent element of the disputed domain name. The addition of the letters "wx" does not serve to sufficiently distinguish or differentiate the disputed domain name from the Complainant ELECTROLUX trade mark since it can be the initial of the pinyin (a phonetic system for transcribing the Mandarin pronunciations of Chinese characters into the Latin alphabet) spelling of "wei xiu" meaning maintenance and repair in Chinese. What is more, the letters "wx" could be attributed to the Complainant's WX series of fridge freezers. The addition of the gTLD ".net" does not impact on the analysis of whether a disputed domain name is identical or confusingly similar to the Complainant's trade mark.
Consequently, the Panel finds that the disputed domain name is confusingly similar to the Complainant's trade mark.
Accordingly, the Complainant has satisfied the requirements of the first element under paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, the Complainant bears the burden of establishing that the Respondent lacks rights or legitimate interests in the disputed domain name. However, once the Complainant makes a prima facie showing under paragraph 4(a)(ii), the burden shifts to the Respondent to establish its rights or legitimate interests in the disputed domain name by demonstrating any of the following, without limitation, under paragraph 4(c) of the Policy:
(i) before any notice to it of the dispute, the Respondent's use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bonafide offering of goods or services; or
(ii) the Respondent has been commonly known by the disputed domain name, even if it has acquired no trade mark or service mark rights; or
(iii) the Respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
(See Taylor Wimpey PLC, Taylor Wimpey Holdings Limited v. honghao internet foshan co, ltd,WIPO Case No. D2013-0974.)
According to evidence furnished by the Complainant, the Respondent does not appear to be commonly known by the name "electrolux", nor is she in any way affiliated with the Complainant or otherwise authorized or licensed to use the ELECTROLUX trade mark or to seek registration of any domain name incorporating the trade mark.
The disputed domain name resolves to a commercial website which prominently displays the Complainant's trade mark and logo, and which purports to offer repair services for ELECTROLUX appliance products. The consensus view of UDRP panels is that such use of the website, including in some cases by unauthorised sales or service agents, can be a bona fide offering of services and confer on the said agents a legitimate interest in the disputed domain name, provided it meets certain requirements, such as:
(i) the Respondent must actually be offering the goods or services at issue;
(ii) the Respondent must use the site to sell only the trademarked goods; otherwise, it could be using the trademark to bait Internet users and then switch them to other goods;
(iii) the site must accurately disclose the Respondent's relationship with the trademark owner; it may not, for example, falsely suggest that it is the trademark owner, or that the website is the official site, if, in fact, it is only one of many sales agents;
(iv) the Respondent must not try to corner the market in all domain names, thus depriving the trademark owner of reflecting its own mark in a domain name;
(See Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903; Research in Motion Limited v. One Star Global LLC,WIPO Case No. D2009-0227.)
The Panel has not found any evidence to suggest that the Respondent is trying to "corner the market" to deprive the Complainant of the opportunity of reflecting its own trade mark. Nor can the Respondent's conduct be classified as "bait and switch" since it does appear that it is focused on providing after-sales repair services for ELECTROLUX appliance products only.
However, the Panel could not find any disclaimers on the Respondent's website disclosing the lack of a business relationship between itself and the Complainant. On the contrary, the Panel spotted the Chinese term for "official website" in various parts of the Respondent's website. This, in the Panel's view, amounts to a false suggestion of an affiliation or association with the Complainant and improperly suggests that the Respondent's website is the official after-sales service website for the Complainant's products. The continuing use of the disputed domain name is confusing to Internet users and clearly falls foul of the "Oki Data" requirements.
The Panel is therefore satisfied that the Complainant has made out a prima facie caseshowing that the Respondent lacks rights or legitimate interests in the disputed domain name.
The Respondent has however failed to respond.
Accordingly, the Complainant has satisfied the requirements of the second element under paragraph 4(a) of the Policy. 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 disputed domain name in bad faith, namely:
(i) circumstances indicating that the Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registrations to the Complainant who is the owner of the trade mark 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; or
(ii) the Respondent has registered the disputed domain name in order to prevent the owner of the trade mark 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 disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent's websites 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 websites or location or of a product.
This is one of those cases where the issue of rights or legitimate interests and bad faith can be conveniently dealt with together. If the respondent is found to have a legitimate interest in the use of a domain name for such purpose, then it is not likely to have registered and/or used the domain name in bad faith. The converse is also the case.
Given the observation above that the Respondent has not accurately disclosed its relationship (or more precisely lack thereof) with the Complainant and our consequent finding that the Respondent lacks rights or legitimate interests in the disputed domain name, this case can be simply dealt with on the basis that the disputed domain name involves an impersonation of the Complainant so as to benefit from confusion created by the domain name itself. Such registration and use of the disputed domain name clearly is abusive.
Lastly, the Panel notes that efforts to contact the Respondent at the physical address provided to the Registrar failed which suggests that the Respondent had provided false contact details. There also appeared to be attempts to conceal the registrant's identity by the use of the privacy shield service.
The Panel finds that the circumstances referred to in paragraph 4(b)(ii) of the Policy are applicable to the present case and taking into account all other relevant circumstances, it is adequate to conclude that the Respondent has registered and used the disputed domain name in bad faith.
Accordingly, the Complainant has satisfied the requirements of the third element under Paragraph 4(a) 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.
Sok Ling MOI
Sole Panelist
Date: August 24, 2015
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