The Complainant is AB Electrolux of Stockholm, Sweden, represented by SILKA Law AB, Sweden.
The Respondent is Tech Domain Services Private Limited of Mumbai, India. 2. The Domain Name and Registrar
The disputed domain name is registered with Tirupati Domains and Hosting Pvt Ltd. (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 6, 2016. On September 6, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 8, 2016, 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 September 12, 2016, 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 September 14, 2016.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 16, 2016. In accordance with the Rules, paragraph 5, the due date for Response was October 6, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 7, 2016.
The Center appointed Gary J. Nelson as the sole panelist in this matter on October 28, 2016. 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 the owner of at least three trademark registrations for AEG in at least three different geographic territories. The Complainant uses its AEG trademark in connection with many products, including power tools and products related to power tools. Specifically, the Complainant owns at least the following trademark registrations:
Country/Territory
Registration No.
Mark
Classes
Date of Registration
European Union
000005967
AEG
007, 009, 011, 012, 037, 042
November 24, 1998
International Registration
802025
AEG
007, 008, 009, 010, 011, 017
December 18, 2002
India
146296
AEG
011
November 1, 1952
The disputed domain name, , appears to have been registered in 2005, and resolves to a website with multiple click-through links. 5. Parties' Contentions A. Complainant
The Complainant is one of the world's leading producers of appliances and equipment for kitchen and cleaning and floor care products.
In 2014, the Complainant has sales of SEK 112 billion and employed about 60,000 people. The history of the Complainant extends back over 120 years and includes groundbreaking heritage in electrical tools and engineering and a formative role in establishing the field industrial design through its connection with German designer Peter Behrens.
The Complainant's AEG brand is used for a variety of household products such as washing machines, refrigerators, dishwashers, and ovens. Since being founded, related company AEG Powertools has been leading the way in new product development. By introducing the first transportable drilling machines in 1898, portable powertools were born. The Complainant has been using the AEG trademark for powertools for over 100 years.
The Complainant owns numerous trademark registrations for the AEG trademark throughout the world.
The disputed domain name is confusingly similar to Complainant's AEG trademark.
The Respondent has no rights or legitimate interests in the disputed domain name.
The Respondent registered and is using the disputed domain name in bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel to "decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
In view of the Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and shall draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.
Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that the disputed domain name should be cancelled or transferred:
(i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) 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. A. Identical or Confusingly Similar
The Complainant has established that it owns rights in the AEG trademark and the disputed domain name is confusingly similar to Complainant's AEG trademark.
The Complainant owns numerous registrations for the AEG trademark throughout the world. Specifically, the Complainant owns European Union Trademark Registration No. 000005967 and International Trademark Registration No. 802025 and India Trademark Registration No. 146296, all for the AEG mark.
Accordingly, the Complainant has established rights in its AEG trademark pursuant to Policy, paragraph 4(a)(i). See Janus International Holding Co. v. Scott Rademacher,WIPO Case No. D2002-0201 (finding that the registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive. The respondent has the burden of refuting this presumption).
The disputed domain name is confusingly similar to the Complainant's AEG trademark because the disputed domain name incorporates the entirety of Complainant's AEG trademark and merely adds the generic or descriptive term "powertools" along with the generic top-level ".com" domain name. Neither the addition of a generic or merely descriptive term to a well-known mark or the addition of a generic top-level domain name is sufficient to create a distinct domain name capable of overcoming a proper claim of confusingly similarity. See Arthur Guinness Son & Co. (Dublin) Limited v. Tim Healy/BOSTH,WIPO Case No. D2001-0026 (finding confusing similarity where the disputed domain name contains the identical mark of the complainant combined with a generic word or term); see also, Sony Kabushiki Kaisha (also trading as Sony Corporation) v. Inja, Kil,WIPO Case No. D2000-1409 (finding that "[n]either the addition of an ordinary descriptive word […] nor the suffix '.com' detract from the overall impression of the dominant part of the name in each case, namely the trademark SONY" and thus Policy, paragraph 4(a)(i) is satisfied).
In regard to the Complainant's AEG trademark, the addition of the term "powertools" is insufficient to overcome the Complainant's allegation of confusing similarity.
Confusing similarity is especially acute in this case where the generic or merely descriptive term (i.e., "powertools"), simply describes a product provided by the Complainant (i.e., power tools). See ACCOR, Société Anonyme à Directoire et Conseil de surveillance v. Tigertail Partners,WIPO Case No. D2002-0625 ("confusion is only heightened when the generic word added by Respondent is descriptive of the Complainant's goods or services marketed in relation to the trademark").
The Panel therefore finds that the Complainant has proven the requirement of Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests
The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
The Respondent has failed to file a Response, which can suggest, in appropriate circumstances, that a respondent lacks rights or legitimate interests in the disputed domain name. See Pavillion Agency, Inc., Cliff Greenhouse and Keith Greenhouse v. Greenhouse Agency Ltd., and Glenn Greenhouse.,WIPO Case No. D2000-1221 (finding that a respondent's failure to respond in a UDRP proceeding can be construed, in appropriate circumstances, as an admission that it has no rights or legitimate interests in a domain name).
By not filing a Response, the Respondent has not provided any evidence that it is commonly known by the disputed domain name, or that it is commonly known by any name consisting of, or incorporating the terms "aeg", "power," "tools", or any combination of these words. In Charles Jourdan Holding AG v. AAIM,WIPO Case No. D2000-0403, the panel held that a lack of rights or legitimate interests could be found where (1) the respondent is not a licensee of the complainant; (2) the complainant's rights in its related trademarks precede the respondent's registration of the domain name; and (3) the respondent is not commonly known by the domain name in question. The Panel notes that by not submitting a Response, the Respondent also failed to provide any evidence establishing rights or legitimate interests.
The disputed domain name resolves to a website featuring numerous click-through links for traditional powertools or related products. Because the Complainant also promotes and distributes powertools and related products, the Panel concludes that the Respondent is using the disputed domain name in association with a website that competes directly with the Complainant's business interests. Furthermore, it is likely the Respondent is receiving click-through fees each time an Internet user accesses the website at "www." and clicks on any of the numerous links available. The use of another's well-known trademark for the purpose of deriving this type of commercial benefit is evidence that the Respondent has no rights or legitimate interests in the disputed domain name.
Accordingly, the Panel concludes Respondent is not using the disputed domain name in association with a bona fide offering of goods and services pursuant to Policy, paragraph 4(c)(iii). See America Online, Inc. v. Xiangfeng Fu,WIPO Case No. D2000-1374 ("it would be unconscionable to find […] a bona fide offering of services in a respondent's operation of [a] web-site using a domain name which is confusingly similar to the complainant's mark and for the same business"). The Panel furthermore finds no other circumstances giving rise to any Respondent rights or legitimate interests in the disputes domain name.
The Panel therefore finds that the Complainant has proven the requirement of Policy, paragraph 4(a)(ii). C. Registered and Used in Bad Faith
The Panel finds that the Respondent registered and is using the disputed domain name in bad faith.
The Panel finds that the Respondent likely chose the disputed domain name with full knowledge of Complainant's rights in the AEG trademark and specifically the Complainant's rights in the AEG trademark for use in association with powertools. The Panel draws this conclusion based on the fact the website associated with the disputed domain name specifically provides click-through links to websites of Complainant's competitors offering competing powertools. The relevant priority dates for the Complainant's trademark registrations precede the date upon which the disputed domain name was registered (i.e., 2005). See T, Inc. v. Daniel Deamone,WIPO Case No. D2001-1066 (finding bad faith where the respondent had actual and constructive notice of the complainant's trademarks registered in the United States); see also Kraft Foods (Norway) v. Fredrik Wide and Japp Fredrik Wide,WIPO Case No. D2000-0911 ("the fact that Respondent [chose] to register a well-known mark to which he has no connections or rights indicates that he was in bad faith when registering the domain name at issue").
Respondent is using the Complainant's AEG trademark to attract Internet users to a website at the disputed domain name . As indicated above, this website features click-through links including products that compete directly with the products sold by Complainant under its AEG trademark. This is sufficient evidence of bad faith. See Lilly ICOS LLC v. Tudor Burdern d/b/a BM Marketing/Burden Marketing,WIPO Case No. D2005-0313.
The Panel therefore finds that the Complainant has proven the requirement of Policy, paragraph 4(a)(iii). 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.
Gary J. Nelson
Sole Panelist
Date: November 11, 2016
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