The Complainant is Westinghouse Electric Corporation, United States of America (“United States”), represented by ALG India Law Offices LLP, India.
The Respondent is Sakir Saleem, As Service Centre, United States. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 23, 2021. On February 23, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On February 23, 2021, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a clarification request by the Center, the Complainant filed an amended Complaint on March 18, 2021. The Center verified that the Complaint together with the amended 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 March 18, 2021. In accordance with the Rules, paragraph 5, the due date for Response was April 7, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 9, 2021. The Center appointed Lynda M. Braun as the sole panelist in this matter on April 26, 2021. 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, a wholly owned subsidiary of ViacomCBS Inc., is a manufacturer of electrical equipment worldwide. Founded as the Westinghouse Electric Company in 1886, the Complainant was renamed as Westinghouse Electric Corporation in 1889. Today, the Complainant is a diversified international company that manufactures and sells home appliances, electronics, and lighting. The Complainant owns numerous trademark registrations for WESTINGHOUSE, WHITE-WESTINGHOUSE, and the W logo, for various goods, including washing machines and dryers, refrigerators, freezers, wine coolers, air conditioners and dehumidifiers, for example the United States trademark WHITE-WESTINGHOUSE, Registration No. 3192678, registered on January 2, 2007, (hereinafter collectively referred to as the “WHITE-WESTINGHOUSE Mark”). The Complainant’s goods that bear the WHITE-WESTINGHOUSE Mark are sold in more than 45 jurisdictions worldwide, including India and the United States. The Complainant’s goods are available for sale through its authorized distributors, sellers, licensees and through third-party online retail stores such as Amazon, in India, the United States and other countries. The Complainant also owns several domain names, including The Disputed Domain Name was registered on July 23, 2019 and resolves to the Respondent’s website that copies the layout, color scheme, trademarks and content of the Complainant’s official website, and purportedly offers repairing services for the Complainant’s products. 5. Parties’ Contentions A. Complainant The following are the Complainant’s contentions: - the Disputed Domain Name is confusingly similar to the Complainant’s WHITE-WESTINGHOUSE Mark; - the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and - the Disputed Domain Name was registered and is being used in bad faith. The Complainant seeks the transfer of the Disputed Domain Name from the Respondent to the Complainant in accordance with paragraph 4(i) of the Policy. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy requires that the Complainant prove the following three elements in order to prevail in this proceeding: (i) the Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and (iii) the Disputed Domain Name was registered and is being used in bad faith. A. Identical or Confusingly Similar This element consists of two parts: first, does the Complainant have rights in a relevant trademark and second, is the Disputed Domain Name identical or confusingly similar to that trademark. It is uncontroverted that the Complainant has established rights in the WHITE-WESTINGHOUSE Mark based on its years of use as well as its registered trademarks for the WHITE-WESTINGHOUSE Mark in jurisdictions worldwide. The general consensus is that “registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive”. See CWI, Inc. v. Domain Administrator c/o Dynadot,WIPO Case No. D2015-1734. The Respondent has not rebutted this presumption, and therefore the Panel finds that the Complainant has rights in the WHITE-WESTINGHOUSE Mark. The Disputed Domain Name Further, the addition of a gTLD such as “.com” in a domain name is technically required. Thus, it is well established that, as here, such element may typically be disregarded when assessing whether a domain name is identical or confusingly similar to a trademark. See Proactiva Medio Ambiente, S.A. v. Proactiva,WIPO Case No. D2012-0182 and WIPO Overview 3.0, section 1.11. Based on the above, the Panel finds that the first element of paragraph 4(a) of the Policy has been met by the Complainant and that the Disputed Domain Name is confusingly similar to the Complainant’s WHITE-WESTINGHOUSE Mark. B. Rights or Legitimate Interests Under the Policy, a complainant has to make out a prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name. Once such a prima facie case is made, the respondent carries the burden of production of evidence that demonstrates rights or legitimate interests in the disputed domain name. If the respondent fails to do so, the complainant may be deemed to have satisfied paragraph 4(a)(ii) of the Policy. See WIPO Overview 3.0, section 2.1. There is no evidence in the record suggesting that the Respondent has rights or legitimate interests in the Disputed Domain Name. The Complainant has not authorized, licensed, or otherwise permitted the Respondent to use the Complainant’s WHITE-WESTINGHOUSE Mark. There is also no evidence that the Respondent is commonly known by the Disputed Domain Name or by any similar name and there is no evidence that the Respondent is an authorized reseller or distributor of the Complainant’s products. Moreover, the Panel finds that the Disputed Domain Name carries a risk of implied affiliation, as customers may falsely believe that the Disputed Domain Name represents a branch of the Complainant in India. See WIPO Overview 3.0, section 2.5.1. Finally, the Complainant does not have any business relationship with the Respondent and based on the use made of the Disputed Domain Name to resolve to a website that is similar in content, layout and color to the Complainant’s official website, displaying the Complainant’s WHITE-WESTINGHOUSE Mark, claiming to be the authorized service center in Mumbai, and purportedly offering repairing services for the Complainant’s products, the Panel finds that the Respondent is not making a bona fide offering of goods or services nor making a legitimate noncommercial or fair use of the Disputed Domain Name. Based on the above, the Panel finds that the second element of paragraph 4(a) of the Policy has been met by the Complainant and that the Respondent has no rights or legitimate interests in the Disputed Domain Name. C. Registered and Used in Bad Faith The Panel finds that, based on the record, the Complainant has demonstrated the Respondent’s bad faith registration and use of the Disputed Domain Name pursuant to paragraph 4(b) of the Policy. First, the Respondent has demonstrated bad faith registration and use by attracting, for commercial gain, Internet users to the Respondent’s website and creating a likelihood of confusion with the Complainant’s WHITE-WESTINGHOUSE Mark. The use of a domain name to attract Internet users to a registrant’s website by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation or endorsement of the registrant’s website for commercial gain demonstrates registration and use in bad faith. Thus, the Respondent’s use of the significant goodwill in the WHITE-WESTINGHOUSE Mark by registering the Disputed Domain Name and using that Disputed Domain Name to resolve to a website that copies elements of the Complainant’s website, claims to be the authorized service center in Mumbai, and purportedly offers repairing services for the Complainant’s products demonstrates the Respondent’s bad faith registration and use of the Disputed Domain Name under the Policy, paragraph 4(b)(iv). Second, the registration of a domain name that is confusingly similar to a widely-known trademark by an entity that has no relationship to that mark can by itself create a presumption of bad faith. See WIPO Overview 3.0, section 3.1.4. Based on the circumstances here, the Panel finds that the Respondent registered and is using the Disputed Domain Name in bad faith to target the Complainant’s WHITE-WESTINGHOUSE Mark. Third, the Panel finds that the Respondent had actual knowledge of the Complainant’s WHITE-WESTINGHOUSE Mark when registering the Disputed Domain Name, demonstrating bad faith. The Respondent registered the Disputed Domain Name years after the Complainant first obtained and used its trademark registrations for the WHITE-WESTINGHOUSE Mark. In light of these circumstances, it is not possible to conceive of a plausible situation in which the Respondent would have been unaware of the Complainant’s WHITE-WESTINGHOUSE Mark at the time the Disputed Domain Name was registered. See Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003. Thus, it is likely that the Respondent had the Complainant in mind when registering and using the Disputed Domain Name. Finally, the website to which the Disputed Domain Name resolves copies the Complainant’s official website in color, design and layout, displays the WHITE-WESTINGHOUSE Mark, and claims to be the authorized service center in Mumbai demonstrating that the Respondent is attempting to pass itself off as the Complainant to deceive the Complainant’s customers into believing that they have arrived at the Complainant’s official website, which is an indication of bad faith. Based on the above, the Panel finds that the third element of paragraph 4(a) of the Policy has been met by the Complainant and that the Respondent registered and is using the Disputed Domain Name 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 Lynda M. Braun
Sole Panelist
Date: May 10, 2021
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