Complainant is AB Electrolux, Sweden, represented by SILKA Law AB, Sweden.
Respondent is Jamie Larnie, Germany. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 3, 2020. On March 3, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 4, 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 Complainant on March 4, 2020 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on March 4, 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 Respondent of the Complaint, and the proceedings commenced on March 10, 2020. In accordance with the Rules, paragraph 5, the due date for Response was March 30, 2020. The Center received two email communications from a Third Party on March 12, 2020. Respondent did not submit any response. Accordingly, the Center notified the Parties of Respondent’s default on March 31, 2020. The Center appointed Ingrīda Kariņa-Bērziņa as the sole panelist in this matter on April 21, 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 Background Complainant is a Swedish producer of appliances and equipment for kitchen and cleaning products and floor care products that was established in 1901. Complainant reports that, in 2018, the company had sales of SEK 124 billion and about 55,000 employees. Complainant is the proprietor of trademark registrations for ELECTROLUX (the “ELECTROLUX Mark”) in around 150 jurisdictions, including the following: - International Registration No. 836605 for ELECTROLUX (device mark) registered on March 17, 2004 for goods and services in classes 3, 7, 8, 9, 11, 12, 21, 25, 35, 37, and 39; and, - International Registration No. 1260775 for ELECTROLUX (device mark) registered on January 27, 2015 for goods and services in classes 7, 8, 9, 11, 21, 26, 35 and 37. Complainant has registered a number of domain names incorporating the ELECTROLUX Mark. It operates a global English-language website at “www.electrolux.com” and a website for the German market at “www.electrolux.de.” The disputed domain name was registered on February 25, 2020. The disputed domain name does not currently resolve to an active website. The record contains two emails from a Third Party which had received copies of the Complaint sent to the mailing address used by Respondent when registering the disputed domain name. The Third Party, a company in Germany, stated that it has no employee by the name of Respondent and no case with Complainant. 5. Parties’ Contentions A. Complainant Under the first element, Complainant states that ELECTROLUX Mark enjoys a high degree of goodwill through long use and extensive advertising around the world. The disputed domain name is confusingly similar to Complainant’s well-known registered ELECTROLUX Mark, as it is a deliberate misspelling of said Mark whereby the letter “t” and the letter “c” have simply swapped places. Under the second element, Complainant states that there is no evidence that Respondent is commonly known by the disputed domain name and there is no evidence that Respondent has a history of using, or preparing to use, the disputed domain name in connection with a bona fide offering of goods or services. Respondent is using the disputed domain name to deceitfully send emails from an email address consisting of the disputed domain name requesting payment and extracting information from customers of Complainant. The disputed domain name does not resolve to an active website. There is no contractual relationship between Complainant and Respondent. Respondent’s fraudulent behavior cannot create any right or legitimate interest in the disputed domain name. Under the third element, Complainant states that its trademark registrations predate the registration of the disputed domain name and therefore it seems highly unlikely that Respondent was unaware of the existence of the ELECTROLUX trademark. Further, the disputed domain name does not resolve to an active website. Respondent takes advantage of the ELECTROLUX trademark by using a confusingly similar domain name to send fraudulent emails, portraying itself to be Complainant and extracting payments from Complainant’s customers. The disputed domain name is confusingly similar to the domain name of Complainant’s official website and the only difference is the placement of the letters “t” and “c” in the disputed domain name. Respondent’s intention is clearly to mislead the recipients of the emails, which is a behavior that cannot constitute good faith use of the disputed domain name. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings Given the facts in the case file and Respondent’s failure to file a response, the Panel accepts as true the contentions in the Complaint. Nevertheless, paragraph 4(a) of the UDRP requires Complainant to make out all three of the following: (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 respect of the disputed domain name; and (iii) Respondent has registered and is using the disputed domain name in bad faith. A. Identical or Confusingly Similar Complainant has provided evidence establishing that it has trademark rights in the ELECTROLUX Mark through registrations in several jurisdictions, thereby satisfying the threshold requirement of having trademark rights for purposes of standing to file a UDRP case. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions (“WIPO Overview 3.0”), section 1.2.1. In comparing Complainant’s ELECTROLUX Mark with the disputed domain name, the Panel finds that the disputed domain name is confusingly similar with the Mark. By transposing the letters “t” and “c”, the disputed domain name is an obvious misspelling of Complainant’s Mark, which is clearly recognizable within the disputed domain name. Section 1.7 of WIPO Overview 3.0 provides: “It is well accepted that the first element functions primarily as a standing requirement. 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.” Section 1.9 of WIPO Overview 3.0 provides: “A domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element.” It is the well-established view of UDRP panels that the addition of the generic Top-Level Domain (“gTLD”) to the disputed domain name does not prevent the disputed domain name from being confusingly similar to Complainant’s trademark (see WIPO Overview 3.0, section 1.11.1, and cases cited thereunder). Accordingly, the Panel finds that Complainant has established the first element under paragraph 4(a) of the Policy. B. Rights or Legitimate Interests Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights to or legitimate interests in a domain name by demonstrating any of the following: (i) before any notice to it of the dispute, 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 bona fide offering of goods or services; or (ii) Respondent has been commonly known by the disputed domain name, even if it has acquired no trademark or service mark rights; or (iii) 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 trademark or service mark at issue. The circumstances stated in the Complaint and evidence in support set forth in the Annexes to the Complaint indicate that Respondent has no rights or legitimate interests in the disputed domain name. The nature of the disputed domain name, which is an obvious misspelling of Complainant’s ELECTROLUX Mark, cannot constitute fair use because Respondent thereby effectively impersonates or suggests sponsorship or endorsement by Complainant, the trademark owner. See WIPO Overview 3.0, section 2.5.1. The Panel finds that there is no evidence that Respondent is commonly known by the disputed domain name or is using the ELECTROLUX Mark with permission of Complainant. Rather, the record supports Complainant’s express assertion that such permission does not exist. Complainant’s rights in the ELECTROLUX Mark predate the registration of the disputed domain name by several years. The Panel finds that the evidence submitted by Complainant establishes a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name. Pursuant to WIPO Overview 3.0, section 2.1, and cases thereunder, where Complainant makes out a prima facie case that Respondent lacks rights or legitimate interests, the burden of production on this element shifts to Respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the disputed domain name. Respondent, in failing to timely file a response, has not submitted any evidence or arguments demonstrating such rights or legitimate interests, nor has it rebutted any of Complainant’s contentions. There is no information available that would support a finding of a fair use of the disputed domain name. Considering the near identity between Complainant’s Mark and the disputed domain name and the fact that the disputed domain name was used to send fraudulent emails, there can be no finding or rights or legitimate interests in the disputed domain name. Accordingly, the Panel finds that Complainant has established the second element under paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation”, are evidence of the registration and use of the disputed domain name in bad faith: (i) circumstances indicating that Respondent has registered or has acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the disputed domain name; or (ii) that Respondent has registered the disputed 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 Respondent has engaged in a pattern of such conduct; or (iii) that Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or (iv) that by using the disputed domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location. The Panel finds bad faith under Policy, paragraph 4(b)(iv). The record in the case demonstrates that Respondent chose the disputed domain name deliberately for the purpose of impersonating or attempting to create an association with Complainant. Complainant’s rights in the ELECTROLUX Mark significantly predate the registration of the disputed domain name. The disputed domain name contains Complainant’s Mark in its entirety, with the transposition of the letters “t” and “c” that email recipients might easily overlook, which is clearly an example of typosquatting. The Panel finds that such a registration creates a presumption of bad faith. See WIPO Overview 3.0, section 3.1.4, describing the types of evidence that may support a finding of bad faith. Having established that the disputed domain name was registered in bad faith, the Panel next turns to the issue of whether Respondent has engaged in bad faith use of the disputed domain name. The Panel finds that Respondent has demonstrated bad faith use in using the disputed domain name to send fraudulent emails to Complainant’s customers to extract information and payment. Respondent shielded his identity by using a privacy service when registering the disputed domain name, and indicated the mailing address of an unrelated Third Party when registering the disputed domain name. Respondent has failed to file any response or provide any evidence of actual or contemplated good faith use, and the circumstances do not make any such use plausible. The Panel therefore finds that Complainant has established 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 Ingrīda Kariņa-Bērziņa
Sole Panelist
Date: May 5, 2020
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