The Complainant is Aktiebolaget Electrolux of Stockholm, Sweden, represented by Melbourne IT Digital Brand Services, Sweden.
The Respondent is Buisman-Rosbergen V.O.F. of Gramsbergen, The Netherlands. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with SIDN through Internet Service Europe. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 2, 2012. On February 3, 2012, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On February 6, 2012, SIDN transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Dispute Resolution Regulations for .nl Domain Names (the “Regulations”).
In accordance with the Regulations, articles 5.1 and 16.4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 9, 2012. In accordance with the Regulations, article 7.1, the due date for Response was February 29, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 1, 2012.
The Center appointed Willem Hoorneman as the panelist in this matter on March 9, 2012. The Panel finds that it was properly constituted. The Panelist has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required to ensure compliance with the Regulations, article 9.2. 4. Factual Background
The Complainant is a world leading producer of appliances and equipment for kitchen and cleaning. The Complainant is holder of many trademark registrations for the wordmark ELECTROLUX, including the Benelux trademark registration No. 0097135, filed on December 17, 1971, as well as the Community trademark registration No. 000077925, filed on April 1, 1996, and registered on September 16, 1998, for, inter alia, washing machines, driers and mangles for laundry, and services related thereto (the “Trademark”).
The Domain Name was registered by the Respondent on October 3, 2005. 5. Parties’ Contentions A. Complainant
The Complainant contends that the Domain Name is confusingly similar to its well-known Trademark, as the Domain Name incorporates the Trademark in its entirety. The addition of the suffix “laundrysystems” is not relevant and will not have any impact on the overall impression of the dominant part of the name, “electrolux”, instantly recognizable as a world famous trademark.
The Complainant claims that the Respondent has no rights to or legitimate interests in the Domain Name. The Complainant has not found that the Respondent has any registered trademarks or trade names corresponding to the Domain Name. The Complainant has never licensed or otherwise authorized the Respondent to use its Trademark. The Respondent is not using the Domain Name in connection with a bona fide offering of goods or services. Rather, the Domain Name displays the homepage of the company Buisman, offering new and used white goods from both the Complainant but also from its competitor Miele. The Respondent is intentionally and without the Complainant’s authorization using both the Trademark in its Domain Name as well as the registered ELECTROLUX logotype on its website in order to appear to be an official website endorsed or sponsored by the Complainant.
By doing this, the Respondent is misleading Internet users to a commercial website. Therefore, the use of the Domain Name cannot be described as legitimate noncommercial or fair use without intent for commercial gain.
The Complainant asserts that the Domain Name has been registered or is being used in bad faith. As the Respondent uses a Domain Name that contains the Complainant’s well-established Trademark in connection with a website offering new and used white goods from both the Complainant but also from its competitor Miele, it may be concluded that the Respondent most likely was aware of the Complainant’s Trademark when registering the Domain Name. Even more so, as the Respondent prominently displays the trademark-protected and copyrighted ELECTROLUX logotype on the website. By using the Domain Name, the Respondent is misleadingly diverting consumers for its own commercial gain, which constitutes bad faith. Also, the Complainant has sent the Respondent a cease and desist letter advising the Respondent that the unauthorized use of the Trademark within the Domain Name violated the Complainant’s trademark rights. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Article 10.3 of the Regulations provides that in the event a respondent fails to submit a response, the complaint shall be granted unless the panelist considers it to be without basis in law or in fact. The Panel notes that, in accordance with article 16.4 of the Regulations, the Center has fulfilled its obligation to employ reasonably available means to achieve actual notice of the Complaint to the Respondent.
Based on article 2.1 of the Regulations, a request to transfer a domain name must meet three cumulative conditions:
A. The domain name is identical or confusingly similar to a trademark or trade name protected under Dutch law in which the complainant has rights, or other name by means of article 2.1(a) under II of the Regulations; and
B. The respondent has no rights to or legitimate interests in the domain name; and
C. The domain name has been registered or is being used in bad faith.
As the Respondent has not filed a Response, the Panel shall rule on the basis of the Complaint. In accordance with article 10.3 of the Regulations, the Complaint shall in that event be granted, unless the Panel considers it to be without basis in law or in fact.
Considering these conditions, the Panel rules as follows: A. Identical or Confusingly Similar
The Complainant has based its Complaint on the Trademark and has submitted copies of its Benelux and Community trademark registrations demonstrating that it is the holder of the Trademark. This Trademark qualifies as a trademark protected under Dutch law.
It is established case law that the top level domain “.nl” may be disregarded in assessing the similarity between the relevant trademark on the one hand, and the domain name on the other hand (see: Taylor Made Golf Company, Inc. v. Lotom Group S.A.,WIPO Case No. DNL2010-0067; Roompot Recreatie Beheer B.V. v. Edoco LTD, WIPO Case No. DNL2008-0008).
The Domain Name is confusingly similar to the Complainant’s Trademark, because the Domain Name incorporates the Trademark in its entirety. The Domain Name differs from the Trademark only in that the Trademark is followed by a generic or descriptive term, namely “laundrysystems”. The addition of such generic or descriptive term does not eliminate the confusing similarity with the Trademark (see: LEGO Juris A/S v. Nick Terlouw,WIPO Case No. DNL2011-0023; Taylor Made Golf Company, Inc. v. Lotom Group S.A.,WIPO Case No. DNL2010-0067; and Seiko EPSON Corporation v. ANEM Computers / ANEM,WIPO Case No. DNL2010-0024). Rather, the additional term concerned adds to the confusion as it describes a type of products manufactured and sold by the Complainant under its Trademark.
Therefore, the Panel finds that the Domain Name is confusingly similar to the Trademark. B. Rights or Legitimate Interests
The record does not include any indication that the Respondent has any relevant trademark or trade name rights regarding the term “electroluxlaundrysystems”. The Complainant has not licensed or otherwise permitted the Respondent to use the Trademark.
As a result of its failure to submit a Response, the Respondent did not use the opportunity to show rights to or legitimate interests in the Domain Name. It may be assumed that the Respondent was and is not commonly known by the Domain Name.
Even if the Respondent would consider itself a reseller of the Complainant’s products, such circumstances will not confer rights or legitimate interests, as it appears from the evidence brought before the Panel that the Respondent uses the Domain Name in connection with a website that advertises the sale of new and used white goods in competition with the Complainant. These circumstances indicate that the Respondent was using the Trademark in the Domain Name to divert the attention of Internet users to competing goods, which implies that the Domain Name is not used for the bona fide offering of goods or services (see: Seiko EPSON Corporation v. ANEM Computers / ANEM,WIPO Case No. DNL2010-0024. A reseller must actually offer the goods and services at issue, the site must sell only the trademarked goods, and the site must accurately and promptly disclose the registrant’s relationship with the trademark holder. These criteria do not appear to have been met (see: Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903). Rather, the Respondent is actually presenting itself on the website as an authorized dealer of the Complainant (in Dutch: “erkend Electrolux dealer”), whereas the Complainant has indicated that this is not the case.
Based on the foregoing, the Panel is of the opinion that the Respondent has no rights to or legitimate interests in the Domain Name. C. Registered or Used in Bad Faith
The registration of the Trademark predates the Domain Name’s registration by a long time. As the Complainant owns trademark rights effective and enforceable in The Netherlands, while the Domain Name is in the “.nl” domain, the website linked to the Domain Name is in the Dutch language, the Respondent is established and runs its business in The Netherlands, and the website concerned offers goods identical or highly similar to those for which the Trademark is registered, such website even displaying the trademark-protected ELECTROLUX logotype, the Panel deems it certain that the Respondent was aware of the Complainant’s (well-established) Trademark when registering the Domain Name.
Based on the uncontested evidence presented, the Panel finds that the Domain Name is being used by the Respondent for commercial gain, by intentionally attracting Internet users to its website where the Respondent is offering goods of the Complainant’s competitor, through the likelihood of confusion with the Complainant’s Trademark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website. This constitutes evidence of bad faith registration and use in accordance with article 3.2 sub d of the Regulations (see: Seiko EPSON Corporation v. ANEM Computers / ANEM,WIPO Case No. DNL2010-0024; and Taylor Made Golf Company, Inc. v. Lotom Group S.A.,WIPO Case No. DNL2010-0067).
Having refrained from submitting a Response, the Respondent has failed to provide any evidence to the contrary. On the above grounds, the Panel finds that the requirements of registration or use in bad faith of the Domain Name pursuant to article 2.1(c) of the Regulations have been met. 7. Decision
For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the Domain Name be transferred to the Complainant.
Willem Hoorneman
Panelist
Dated: March 23, 2012
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