The Complainant is AB Electrolux, Sweden, represented by SILKA Law AB, Sweden.
The Respondent is Barry Chen, Spain.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 30, 2020. On January 30, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On January 31, 2020, 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 January 31, 2020, 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 February 3, 2020.
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 February 3, 2020. In accordance with the Rules, paragraph 5, the due date for Response was February 23, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 29, 2020.
The Center appointed Michael D. Cover as the sole panelist in this matter on March 10, 2020. 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 BackgroundThe 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. Having started out with the sale of a single vacuum cleaner, after 90 years of innovations and acquisitions, the Complainant is now a global leader in home and professional appliances. The ELECTROLUX brand is the Complainant’s flagship brand for kitchen and cleaning appliances for both consumers and professional users. In 2018, the Complainant had sales of SEK 124 billion and about 55,000 employees.
The Complainant is the proprietor of the registered trademark ELECTROLUX as a word and figure mark in several classes in more than 150 countries all over the world, including in Spain, which is where the Respondent is located, according to the WhoIs information for the Disputed Domain Name. The Complainant has a strong business presence in Spain through its business unit in Madrid, as well via its official licensing partners and service desks.
The Complainant is the proprietor of the International Registered Trademark No. 836605 ELECTROLUX (and device) registered on March 17, 2004 in a wide range of Classes, including Classes 11 and 21, and No. 1126087 ELECTROLUX ULTRAPOWER registered on July 18, 2012, as well as a registration of ELECTROLUX (logo) in Spain filed on May 3, 1969. The Complainant is also the proprietor of a substantial number of domain names, which consist of or include the word “Electrolux”, as set out in Annex 6 to the Complaint.
At the time that the Complaint was filed, the registrant of the Disputed Domain Name was shown as GDPR Masked of Barcelona, Spain. The Registrar of the Disputed Domain Name subsequently provided further information and the details of the Respondent were amended to Barry Chen of Spain.
The Disputed Domain Name was registered on October 11, 2019 and does not resolve to an active website.
5. Parties’ Contentions A. ComplainantIdentical and Confusingly Similar to a trademark in which the Complainant has rights
The Complainant states that it is one of the world’s leading producers of appliances and equipment for kitchen and cleaning and floor care, both as home and professional appliances. The Complainant submits that its ELECTROLUX brand is its flagship brand for kitchen and cleaning appliances in both areas. The Complainant states that it had sales of SEK 124 billion and about 55,000 employees worldwide in 2018.
The Complainant notes that it is the owner of the well-known trademark ELECTROLUX as a word and figure mark in several classes in more than 150 countries all over the world, including Spain. The Complainant notes that the Respondent is located in Spain according to the WhoIs information for the Disputed Domain Name. The Complainant states that it has a strong business presence in Spain through its business unit in Madrid, as well as via its official licensing partners and service desks. The Complainant sets out in the Complaint the link to the website for Electrolux (global and Spain)
The Complainant notes that the trademark registrations which it sets out in the Complaint predate the registration of the Disputed Domain Name. The Complainant submits that, due to the extensive use, advertising and revenue associated with its trademarks worldwide, the Complainant enjoys a high degree of goodwill around the world, including in Spain.
The Complainant notes that it has registered a number of domain names containing the term “Electrolux”, for example,
The Complainant submits that the Disputed Domain Name, which was registered on October 11, 2019, is confusingly similar to and an intentional misspelling, the “u” and the “o” having simply swapped places, of the Complainant’s well-known trademark ELECTROLUX. The Complainant continues that the addition of the generic Top-Level Domain, (“gTLD”) .com, does not add any distinctiveness to a domain name and sets out various examples from previous UDRP cases. The Complainant concludes that this consideration should apply in the current case and that the Disputed Domain Name should be considered confusingly similar to the registered trademark ELECTROLUX, in which the Complainant has rights.
Rights or Legitimate Interests
The Complainant states that it has not found that the Respondent is commonly known by the Disputed Domain Name and there is no evidence that the Respondent has a history of using or preparing to use the Disputed Domain Name in connection with a bona fide offering of goods and services. Instead, the Complainant notes, the Respondent is using the Disputed Domain Name deceitfully to send emails from an email address consisting of the Disputed Domain Name, requesting a payment from customers of the Complainant and the Complainant refers in this connection to Annex 9 of the Complaint.
The Complainant submits that it is clear that the intention of the registration of the Disputed Domain Name is to take advantage of the misspelling of the well-known ELECTROLUX trademark in the Disputed Domain Name by using the Disputed Domain Name to send emails, which are intended to give the recipient the wrongful impression that the emails are sent from the Complainant, and extract sensitive information, as well as money, from the recipients of the emails (phishing). The Complainant submits that this fraudulent behaviour does not constitute any right or legitimate interest in the Disputed Domain Name, as discussed in the similar case, Scania CV AB v. Registration Private, Domains by Proxy, LLC / Anthony Giardino,
WIPO Case No. D2016-0612.
The Complainant goes on to note that the Disputed Domain Name does not resolve to an active website and that it has been established in previous UDRP cases that such use cannot constitute a right or legitimate interest in the domain name and cites various cases in support. The Complainant submits that there is no business relationship between the Respondent and the Complainant and concludes that the use of a domain name for fraudulent activity, such as the sending of deceptive emails, as in this present case, can never constitute rights or legitimate interests in a domain name. The Complainant refers to the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) “Panels have categorically held that the use of a domain name for illegal activity (e.g. the sale of counterfeit goods or illegal pharmaceuticals, phishing, distributing malware, unauthorised account access/hacking, impersonation/passing off or other types of fraud) can never confer rights or legitimate interests on a respondent”.
The Complainant concludes that the Respondent’s behavior, as detailed in the Complaint, seen together with the use of the Disputed Domain Name as described in the Complaint, cannot be considered as legitimate use of the Disputed Domain Name.
Registered and Used in Bad Faith
The Complainant notes that the Complainant’s trademark registrations predate the registration of the Disputed Domain Name and submits that it is therefore highly unlikely that the Respondent was not aware of the existence of the Complainant’s trademark and the resulting unlawfulness, as the Complainant describes it, of the registration of the Disputed Domain Name.
Having dealt with registration in bad faith, the Complainant turns to the question as to whether the Disputed Domain Name is being used in bad faith. The Complainant notes that the Disputed Domain Name does not resolve to an active website. The Complainant continues by submitting that the Respondent takes advantage of the ELECTROLUX trademark by using a confusingly similar domain name to send fraudulent emails, portraying itself to be the Complainant and seeking to extract payment from the Complainant’s customers. The Complainant refers in this connection to Annex 9 of the Complaint.
The Complainant submits that the Respondent’s intention is clearly to mislead the recipients of the emails, which, the Complainant submits cannot constitute good faith use of the Disputed Domain Name.
The Complainant summarises by stating that the brand ELECTROLUX is a globally, including in Spain,
well-known trademark in the home appliance industry. The Complainant continues that it is highly unlikely that the Respondent was not aware of the rights that the Complainant has in the ELECTROLUX trademark and the value of the trademark at the point when the Respondent was registering the Disputed Domain Name. Lastly, the Complainant submits that the Respondent is using the Disputed Domain Name for phishing, a fraudulent activity that cannot constitute a finding of good-faith use.
The Complainant concludes that the Respondent should be considered to have registered and to be using the Disputed Domain Name in bad faith.
The Complainant requests that the Panel decide that the Disputed Domain Name be transferred to the Complainant.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsThe Complainant must demonstrate on the balance of probabilities that the Disputed Domain Name is identical or confusingly similar to a trademark in which the Complainant has rights, that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name and that the Disputed Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly SimilarThe Panel accepts that the Complainant has established registered rights in its ELECTROLUX trademark. Extensive use has been made of the ELECTROLUX trademark since 1901. The Panel accepts the submission of the Complainant that, as a result, the Complainant’s trademark ELECTROLUX trademark has become a well-known trademark.
The Panel also accepts that the Disputed Domain Name is confusingly similar to the Complainant’s trademark, in which the Complainant has rights. The Disputed Domain Name incorporates the Complainant’s well-known trademark ELECTROLUX in full, with the sole difference that the Disputed Domain Name has the “o” and the “u” transposed. The Panel accepts that it is a reasonable inference to make that the Respondent can only have been fully aware of the Complainant’s well-known trademark ELECTROLUX when registering the Disputed Domain Name.
Finally, it is well-established that that the addition of the gTLD “.com” does not avoid a finding that a disputed domain name is confusingly similar to a complainant’s trademark.
The Panel accordingly finds that the Disputed Domain Name is confusingly similar to the Complainant’s trademark ELECTROLUX, in which the Complainant has rights, and that the provisions of paragraph 4(a)(i) of the Policy have been met.
B. Rights or Legitimate InterestsThe Panel accepts that the Respondent has no rights or legitimate interests in the Disputed Domain Name. There is no evidence before the Panel to indicate that the Complainant has licensed or authorized the Respondent to use the ELECTROLUX trademark. The Panel decides that the burden then passes to the Respondent, the Complainant having made out a prima facie case.
The Respondent has failed to satisfy the burden, which has passed to the Respondent, who has chosen not to respond, despite having been given the opportunity so to do. The Respondent has not demonstrated use or demonstrable preparations to use the Disputed Domain Name in connection with a bona fide offering of goods or services, that it has been commonly-known by the Disputed Domain Name nor that it has been making legitimate noncommercial use of the Disputed Domain Name, without intent for commercial gain or to misleadingly divert consumers or to tarnish the ELECTROLUX trademark of the Complainant. In addition, the Panel accepts that the use of the Disputed Domain Name that has taken place has been to send emails from an email address consisting of the Disputed Domain Name requesting payment from customers of the Complainant.
The Panel therefore accordingly finds that the provisions of paragraph 4(a)(ii) of the Policy have been met.
C. Registered and Used in Bad FaithThe non-exhaustive list of evidence of registration and use in bad faith in paragraph 4(b) of the Policy includes (iii) that the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor, in this case the Complainant and (iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its 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 its website or location or of a product or service on its website or location.
The Panel finds that both the above circumstances have been established here by the Complainant. This is a reasonable inference from the evidence before the Panel, which has accepted that the Complainant’s trademark ELECTROLUX is well-known. This is also a reasonable inference from the Disputed Domain Name being used in emails in the manner set out in the Complaint. This finding is also supported in this case by the Complainant’s trademark, ELECTORLUX, being well-known, and the failure of the Respondent to submit a Response and hence provide any evidence of actual or contemplated good faith use.
The Panel therefore finds that the provisions of paragraph 4(a)(iii) of the Policy have been met.
7. DecisionFor 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
Michael D. Cover
Sole Panelist
Date: March 24, 2020