The Complainant is AB Electrolux of Stockholm, Sweden, represented by SILKA Law AB, Sweden.
The Respondent is Protection of Private Person of Moscow, Russian Federation / PERAKT, LLC of Moscow, Russian Federation. 2. The Domain Name and Registrar
The disputed domain name is registered with Registrar of Domain Names REG.RU LLC (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on September 28, 2017. On September 29, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 3, 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 October 9, 2017 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant acknowledged receipt of the Center’s email further stating it did not wish to amend the complaint on October 19, 2017. On October 26, 2017, the Center acknowledged receipt of Complainant’s email of October 19, 2017 confirming its choice not to accept the invitation to file an amendment to the Complaint (or Amended Complaint) in light of the Registrar-provided registrant information for the disputed domain name. The Center further stated that for avoidance of doubt regarding the Center’s notification obligations under the Policy and Rules, the Center would nevertheless provide a copy of the Complaint both to the Respondent as currently named in the Complaint, and to the registrant contact details subsequently disclosed by the Registrar.
The Complaint was submitted in the English language. The language of the Registration Agreement for the disputed domain name is Russian. On October 9, 2017, the Center sent an email communication to the Parties in both English and Russian regarding the language of the proceeding. On October 9, 2017, the Complainant requested that English be the language of the proceeding as submitted in the Complaint. The Respondent did not reply to the Center’s communication regarding the language of the proceeding or the Complainant’s submission.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 26, 2017. In accordance with the Rules, paragraph 5, the due date for Response was November 15, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 27, 2017.
The Center appointed Assen Alexiev as the sole panelist in this matter on December 8, 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.
In respect of the language of the proceedings, the Panel notes the following. According to the information provided by the Registrar, the language of the registration agreement for the disputed domain name is Russian. Under paragraph 11 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.
The Complainant has submitted its Complaint in the English language, and has requested the proceeding to be held in English. The Center has sent all its messages to the Respondent in both English and Russian, and has invited the Respondent to express its views on the language of the proceeding. The Respondent has refrained from doing so, and has thus not objected to the Complainant’s request the proceedings to be held in English.
In these circumstances, it appears to the Panel that using the English language in this proceeding will be fair and efficient and will not put either of the parties at a disadvantage. Therefore, in exercise of its powers under paragraph 11 of the Rules, the Panel decides that the language of this administrative proceeding will be English. At the same time, the Panel will take into account all evidence in the case file available in English or Russian languages. 4. Factual Background
The Complainant is a Swedish joint stock company founded in 1901. It is a global manufacturer of household appliances and appliances for professional use, and sells more than 60 million products to customers in more than 150 markets every year. In 2016, Electrolux had sales of SEK 121 billion and about 55,000 employees.
The Complainant is the owner of the following trademark registrations for ELECTROLUX (the “ELECTROLUX trademark”):
- the international trademark ELECTROLUX, with registration No. 836,605, registered on March 17, 2004 for goods and services in International Classes 3, 7, 8, 09, 11, 12, 21, 25, 35, 37 and 39, registered for a number of jurisdictions, including the Russian Federation, and
- the international trademark ELECTROLUX, with registration No. 1,260,775, registered on January 27, 2015 for goods and services in International Classes 7, 8, 9, 11, 21, 26, 35 and 37, registered for a number of jurisdictions, including the Russian Federation;
The Complainant has registered and uses for its business the domain names , registered on April 30, 1996, and registered on July 2, 1998.
The disputed domain name was registered on November 15, 2016. It resolves to a website that features the ELECTROLUX trademark, offers repair and maintenance services for Electrolux products and describes itself as the Electrolux service center in Moscow. 5. Parties’ Contentions A. Complainant
The Complainant submits that the disputed domain name reproduces the Complainant’s ELECTROLUX trademark in its entirety, and is therefore confusingly similar to this trademark.
The Complainant submits that the disputed domain name is confusingly similar to the ELECTROLUX trademark, as it reproduces the trademark in its entirety. The disputed domain name also contains a dash and the country name “Russia”, but the mere addition of dashes, generic terms or geographic indicators does not differentiate the disputed domain name from the trademark.
According to the Complainant, the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent is not commonly known by the disputed domain name and has no history of using, or preparing to use it in connection with a bona fide offering of goods or services. According to the Complainant, the intention behind the registration of the disputed domain name is to take advantage of the internet traffic generated due to the incorporation of the ELECTROLUX trademark in it. The Respondent is using the disputed domain name to attract Internet users to its website where it offers repair and maintenance services for Electrolux products. The Complainant has an agreement with all its authorized partners which stipulates that they are not entitled to register domain names incorporating the Complainant’s trademarks. The incorporation of the ELECTROLUX trademark in the disputed domain name and the Inclusion of the ELECTROLUX logo in the top and middle section of the website at the disputed domain name strongly suggests that there is a connection to the Complainant and that here is some official or authorized relationship with the Complainant for the purposes of repairs and services within Russian Federation. The link on the “Contact us” page on the website of the disputed domain name says “Official website of Electrolux Russia” and links directly back to the homepage of the disputed domain name, and the website contains no disclaimer.
The Complainant contends that the disputed domain name was registered and is being used in bad faith. The disputed domain name was registered after the Complainant’s ELECTROLUX trademark was registered, so the Respondent was aware of the trademark at the time of registration of the disputed domain name. According to the Complainant, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s ELECTROLUX trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website and of the services offered on the Respondent’s website. The website at the disputed domain name features the official logo of ELECTROLUX, intentionally portrays the Respondent as being the Complainant and/or being an official and authorized representative of the Complainant, and contains no disclaimer that there is no existing relationship between the Respondent and the Complainant.
The Complainant also submits that prior to the filing of this Complaint, it sent a cease and desist letter to the Respondent, requesting the cessation of the unauthorized use and the transfer of the disputed domain name to the Complainant. The Respondent failed to respond to the cease and desist letter. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Pursuant to the Policy, paragraph 4(a), the Complainant must prove each of the following to justify the transfer of the disputed domain name:
(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 Respondent has registered and is using the disputed domain name in bad faith.
In this case, the Center has employed the required measures to achieve actual notice of the Complaint to the Respondent, in compliance with the Rules, paragraph 2(a), and the Respondent was given a fair opportunity to present its case.
By the Rules, paragraph 5(c)(i), it is expected of a respondent to: “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name…”
In this proceeding, the Respondent has not used the opportunity provided to it under the Rules and has not submitted a Response addressing the contention of the Complainant and the evidence submitted by it. A. Identical or Confusingly Similar
The Complainant has provided evidence and has thus established its rights in the ELECTROLUX trademark.
The Panel notes that a common practice has emerged under the Policy to disregard in appropriate circumstances the generic Top-Level Domain (“gTLD”) section of domain names for the purposes of the comparison under the Policy, paragraph 4(a)(i). The Panel sees no reason not to follow the same approach here, so it will disregard the “.com” Top-Level Domain (“gTLD”) section of the disputed domain name.
The relevant part of the disputed domain name is therefore the section “electrolux-russia”, which contains the elements “electrolux” and “russia”. The “electrolux” element is identical to the word element of the ELECTROLUX trademark, while the element “russia” is identical to the geographical name “Russia”, where the Respondent is located. In the Panel’s view, the inclusion of this combination in the disputed domain name may lead Internet users to believe that the disputed domain name represents an official online location of the Complainant for the Russian Federation.
In view of the above, the Panel finds that the disputed domain name is confusingly similar to the ELECTROLUX trademark in which the Complainant has rights. B. Rights or Legitimate Interests
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 relevant evidence demonstrating rights or 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. See section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
The Complainant has contended that the Respondent has no rights or legitimate interests in the disputed domain name, stating that the Respondent has not been authorized by the Complainant to register and use domain names incorporating the ELECTROLUX trademark and that the Respondent is not commonly known by the disputed domain name. Rather, the Respondent has used the disputed domain name in relation to a website falsely claiming to be an official website of the Complainant in the Russian Federation. Thus, the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.
The Respondent has not alleged that is has rights and legitimate interests in the disputed domain name and has not disputed the Complainant’s allegations in this proceeding. It has not responded to the Complainant’s cease and desist letter either.
The disputed domain name incorporates the ELECTROLUX trademark entirely with the addition of the geographical name “Russia”. This makes it likely that Internet users may regard the disputed domain name as being an official online location of the Complainant for its ELECTROLUX products for the Russian Federation. This likelihood of confusion is further increased by the Respondent’s use of the disputed domain name for a website that features the ELECTROLUX trademark, offers repair and maintenance services for Electrolux products and describes itself as the Electrolux service center in Moscow.
On the basis of the above, the Panel is satisfied that the Respondent, being well aware of the Complainant, is likely to have registered and used the disputed domain name in an attempt to exploit the popularity of the ELECTROLUX trademark to attract the attention of Internet users and to mislead them that the disputed domain name and the associated website represent an official online location of the Complainant, without disclosing the lack of any relationship with or endorsement by the Complainant. In the Panel’s view, such conduct does not appear to be legitimate and cannot be regarded as giving rise to rights and legitimate interests of the Respondent.
Therefore, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy lists four illustrative alternative circumstances that shall be evidence of the registration and use of a domain name in bad faith by a respondent, namely:
“(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 web site 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 your website or location or of a product or service on your website or location.”
The provisions of paragraph 4(b) of the Policy are without limitation, and bad faith registration and use may be found on grounds otherwise satisfactory to the Panel.
As discussed above, the disputed domain name fully incorporates the ELECTROLUX trademark and is confusingly similar to it. The Respondent does not deny that the disputed domain name is linked to a website falsely claiming to be an official online location of the Complainant for the Russian Federation.
On the basis of the above, and in view of the considerations of the Panel set out in the section related to rights and legitimate interests, the Panel finds that the Respondent is likely to have registered the disputed domain name with knowledge of the Complainant and targeting the ELECTROLUX trademark in an attempt to attract traffic to the disputed domain name and to the associated website by confusing Internet users that they are reaching an official online location of the Complainant. On the basis of the above, the Panel accepts that this conduct of the Respondent amounts to bad faith registration of the disputed domain name.
The Respondent has not denied that the disputed domain name is being used in connection to a website that features the ELECTROLUX trademark, offers repair and maintenance services for Electrolux products and describes itself as the Electrolux service center in Moscow without disclosing the lack of relationship between the Parties. Such use may confuse Internet users that they are offered repair services for the Complainant’s products by the Complainant itself. In view of this, the Panel accepts that by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the website at the disputed domain name, by creating a likelihood of confusion with the Complainant’s ELECTROLUX trademark as to the source, sponsorship, affiliation, or endorsement by the Complainant of the Respondent’s website and of the services offered at the Respondent’s website. Therefore, the Panel finds that the disputed domain name has been used in bad faith. 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.
Assen Alexiev
Sole Panelist
Date: January 11, 2018
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