The Complainant is AB Electrolux of Stockholm, Sweden, represented by SILKA Law AB, Sweden.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc. of Panama / Everything Gold of Owerri, Imo, Nigeria. 2. The Domain Name and Registrar
The disputed domain name is registered with NameCheap, Inc. (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 23, 2017. On August 24, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 24, 2017, 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 5, 2017 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 the same day.
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 6, 2017. In accordance with the Rules, paragraph 5, the due date for Response was September 26, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on September 27, 2017.
The Center appointed Zoltán Takács as the sole panelist in this matter on October 3, 2017. 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.
The language of this administrative proceeding is English, that being the language of the Registration Agreement. 4. Factual Background
The Complainant is a global leader in household appliances and appliances for professional use, selling more than 60 million products to customers in more than 150 markets every year. It offers thoughtfully designed, innovative and sustainable solutions, under various brands including Electrolux, AEG, Zanussi and Frigidaire.
The Complainant is owner of, among others, International Trademark Registration No. 836605 for the mark ELECTROLUX, registered on March 17, 2004, for goods and services of Classes 3, 7, 8, 9, 11, 12, 21, 25, 35, 37 and 39 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purpose of the Registration of Marks.
Since April 30, 1996, the Complainant owns the domain name registration which it uses for promotion of its products and services.
The disputed domain name was registered on March 20, 2017, and has been parked with a pay-per-click service displaying links predominantly with home appliances. 5. Parties' Contentions A. Complainant
The Complainant states that the disputed domain name reproduces its ELECTROLUX trademark in its entirety together with the applicable generic Top-Level Domain ("gTLD") and is therefore confusingly similar to the Complainant's ELECTROLUX trademark.
The Complainant alleges that the Respondent has no rights or legitimate interests in respect of the disputed domain name and is unable to rely of any of the circumstances set out in paragraphs 4(c)(i), (ii) or (iii) of the Policy.
The Complainant claims that the Respondent has registered and is using the disputed domain name in bad faith. Taking into account the worldwide fame of the Complainant's ELECTROLUX mark, the Respondent evidently knew of the Complainant, its services and products.
The Complainant states that the disputed domain name resolves to a parking page displaying links mostly related to goods and services which make its core business. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Paragraph 15(a) of the Rules requires that the Panel's decision be made "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."
It has been a consensus view in UDRP decisions that a respondent's default (i.e., failure to submit a formal response) would not by itself mean that the complainant is deemed to have prevailed; a respondent's default is not necessarily an admission that the complainant's claims are true. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0").
A complainant must evidence each of the three elements required by paragraph 4(a) of the Policy in order to succeed on the complaint, namely that;
(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. A. Identical or Confusingly Similar
Under paragraph 4(a)(i) of the Policy, there are two requirements which the Complainant must establish, first that it has rights in a trademark or service mark, and second that the disputed domain name is identical or confusingly similar to the trademark or service mark.
It has been accepted by many UDRP panels that if the complainant owns a trademark, then it generally satisfies the threshold requirement of having trademark rights.
The Complainant produced appropriate evidence that it holds registered rights in the trademark ELECTROLUX, and for the purpose of this proceeding, the Panel establishes that the Complainant's International Trademark Registration No. 836605 for the mark ELECTROLUX satisfies the requirement of having trademark rights for the purposes of the Policy.
Having determined that the Complainant has trademark rights in the ELECTROLUX mark, the Panel next assessed whether the disputed domain name is identical or confusingly similar to the ELECTROLUX trademark of the Complainant.
According to section 1.7 of the WIPO Overview 3.0, the standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the complainant's trademark and the disputed domain name. This test typically involves a side-by-side comparison of the disputed domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the disputed domain name.
The disputed domain name contains the Complainant's ELECTROLUX trademark in its entirety. The only element in the disputed domain name other than the ELECTROLUX trademark of the Complainant is the applicable gTLD ".life".
According to section 1.11.1 of the WIPO Overview 3.0, the applicable gTLD in a domain name (e.g., ".com", ".club", ".nyc") is viewed as a standard registration requirement and as such may be disregarded under the first element confusing similarity test.
On the basis of facts and circumstance discussed above the Panel finds that the disputed domain name is identical to the ELECTROLUX trademark of the Complainant and that the requirement of paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests
Under paragraph 4(c) of the Policy, a respondent may demonstrate its rights or legitimate interests in a domain name by showing any of the following circumstances, in particular but without limitation:
(i) its use of, or demonstrable preparation to use the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods and services;
(ii) it has been commonly known by the domain name;
(iii) it is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
In the present case, the Complainant has submitted sufficient and uncontested evidence that it holds well-established rights in the trademark ELECTROLUX.
The Complainant has never authorized the Respondent to use its ELECTROLUX trademark in any way, and the Complainant's prior rights in the ELECTROLUX trademark long preceded the date of registration of the disputed domain name.
According to section 2.1 of the WIPO Overview 3.0, while the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of "proving a negative", requiring information that is often primarily within the knowledge or control of the respondent.
As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with the relevant evidence demonstrating rights of legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.
The Respondent defaulted and failed to respond, and by doing so failed to offer the Panel any type of evidence set forth in paragraph 4(c) of the Policy, or otherwise counter the Complainant's prima facie case. The Panel does not find the Respondent's use of the disputed domain name to be bona fide within the meaning of the Policy.
The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name in accordance with paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy lists a number of factors which, if found by the panel to be present, shall be evidence of registration and use of a domain name in bad faith. This non-exclusive list includes:
"(i) circumstances indicating that you have registered or you have 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 your documented out-of-pocket costs directly related to the domain name; or
(ii) you have 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 you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location."
The Complainant presented undisputed evidence which convinces the Panel that the Respondent has registered and is using the disputed domain name in bad faith
The Complainant's ELECTROLUX trademark is widely known, and the disputed domain name is reproducing it in its entirety. These facts lead the Panel to conclude that the Respondent must have been aware of the Complainant's trademark at the time of obtaining the disputed domain name.
The Panel cannot conceive of any legitimate use that the Respondent could plausibly make of the disputed domain name, which incorporates the Complainant's trademark in its entirety and resolves to a pay-per-click website displaying predominantly home appliances, goods of the core business of the Complainant. In the Panel's view the only rational explanation for the Respondent's choice to register the disputed domain name is to exploit the reputation behind the ELECTROLUX trademark of the Complainant, and to profit from pay-per-click revenue, without any authorization or right to do so.
The Respondent's failure to respond to the communication from the Complainant, as well as the fact that no communication of the Center, either electronic or paper-based could, be delivered to the Respondent because of false or incomplete contact particulars in the WhoIs information for the disputed domain name in view of this Panel are also indicative of bad faith registration and use.
The Respondent's initial use of the identity shield in opinion of this Panel demonstrates bad faith disregard for the trademark rights of others. It is difficult to find any reason for the Respondent's use of the domain name privacy service other than to make it as difficult as possible for the Complainant to identify the registrant of the disputed domain name and protect its trademark rights against cybersquatting, which is clear evidence of bad faith conduct.
In view of this Panel, all the above discussed facts and circumstances support the applicability of paragraph 4(b)(iv) of the Policy and the Panel finds that paragraph 4(a)(iii) of the Policy is satisfied. 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.
Zoltán Takács
Sole Panelist
Date: October 16, 2017
Full & Egal Universal Law Academy