The Complainant is AB Electrolux of Stockholm, Sweden, represented by BrandIT Legal AB, Sweden.
The Respondent is Kara Gostar Azin Gheshm of Tehran, (Islamic Republic of) Iran. 2. The Domain Name and Registrar
The disputed domain names (the “First Disputed Domain Name”) and (the “Second Disputed Domain Name”) are registered with IRNIC. The First Disputed Domain Name and the Second Disputed Domain Name are referred to below collectively as the “Disputed Domain Names”. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 13, 2015. On July 14, 2015, the Center transmitted by email to IRNIC a request for registrar verification in connection with the Disputed Domain Names. On July 15, 2015, IRNIC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. Hard copies of the Complaint were received by the Center on July 16, 2015.
The Center verified that the Complaint and the amended Complaint satisfied the formal requirements of the .ir Domain Name Dispute Resolution Policy (the “Policy” or “irDRP”), the Rules for .ir Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for .ir Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 21, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was August 10, 2015. The Respondent did not submit any response. On August 11, 2015, the Center notified the Respondent’s default.
The Center appointed Nick J. Gardner as the sole panelist in this matter on August 14, 2015. 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 is AB Electrolux. It is a Swedish company and a major manufacturer of domestic appliances such as refrigerators and washing machines. It has been in business since 1901. In 2014, the Complainant had sales of SEK112 billion and about 60,000 employees.
The Complainant is the owner of numerous trademark registrations for the word ELECTROLUX as a word and figure mark. It has registrations for this trademark in several classes in more than 150 countries all over the world including in Iran. See for example International Trademark Registration 1593/2671 (first registered in 1944). As well as using the ELECTROLUX trademark the Complainant also promotes some of its products under another brand, AEG. The origin of this brand is a German company dating back to 1887. Nowadays the Complainant has numerous worldwide trademark registrations for the term AEG, including in Iran, see for example International Trademark Registration No. 802 025 (first registered in 2002).
The Complainant’s ELECTROLUX and AEG brands are well-known. The word ELECTROLUX has no other meaning other than in relation to the Complainant and its products. The letters AEG as a three letter acronym could potentially apply to any three words starting with those letters, but there is no evidence before the Panel of any other usage of those letters except in relation to the Complainant’s products, where the letters are very well-known.
The Respondent registered the First Disputed Domain Name on November 5, 2012 and the Second Disputed Domain Name on July 10, 2012.
Neither of the Disputed Domain Names resolves to an active web page and there is no evidence before the Panel of any other use of the Disputed Domain Names by the Respondent. 5. Parties' Contentions A. Complainant
The Complainant’s case can be summarised as follows.
a) Each of the Disputed Domain Names is either identical or confusingly similar to the ELECTROLUX or AEG trademarks as (in the case of the First Disputed Domain Name) it incorporates in their entirety Complainant’s well-known and distinctive ELECTROLUX or AEG marks; and (in the case of the Second Disputed Domain Name) it incorporates in its entirety Complainant’s well-known and distinctive ELECTROLUX mark.
b) The Respondent does not have any rights or legitimate interests in the Disputed Domain Names.
c) The Respondent has registered and used the Disputed Domain Names in bad faith as the Disputed Domain Names must have been registered with knowledge of the Complainant and its rights and even the passive holding of such well-known names amounts to bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Preliminary Matters
So far as the Policy is concerned the Panel notes that it is substantially similar to (though not identical to) the Uniform Domain Name Dispute Resolution Policy (the UDRP) as adopted by the Internet Corporation for Assigned Names and Numbers (“ICANN”). The Panel will where appropriate apply principles that have been established in relation to the UDRP in determining this dispute.
The Panel notes that no communication has been received from the Respondent. However given the Complaint and Written Notice were sent to the relevant addresses disclosed by the Registrar then the Panel adopts the approach set out in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) namely, “once the WIPO Center has notified the complaint to the WhoIs-listed contact information (especially where confirmed by the registrar) for the domain name registrant, this would normally satisfy the requirement in paragraph 2(a) of the UDRP Rules to employ reasonably available means calculated to achieve actual notice”.
In these circumstances the Panel is satisfied that the Center has complied with its obligation to employ “reasonably available means calculated to achieve actual notice to Respondent”. Under the Rules, paragraph 5(e) “[i]f a Respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the complaint.” The Panel concludes that there are no exceptional circumstances which prevent the Panel deciding the dispute. While the Respondent’s failure to file a response does not automatically result in a decision in favor of the Complainant, the Panel may draw appropriate inferences from the Respondent’s default (see, e.g., Verner Panton Design v. Fontana di Luce Corp,WIPO Case No. D2012-1909). Substantive Matters
Paragraph 4(a) of the Policy states that the Complainant must prove each of the three following elements:
i. the Respondent’s Disputed Domain names are identical to 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 the Disputed Domain Names;
iii. the Respondent’s Disputed Domain Names have been registered or are being used in bad faith. A. Identical or Confusingly Similar
The Complainant has submitted detailed evidence that it is the owner of numerous trademarks registrations consisting of the word “ELECTROLUX” and the term “AEG”.
The Panel holds that the First Disputed Domain Name is confusingly similar to the ELECTROLUX and AEG trademarks and the Second Disputed Domain Name is identical to the “ELECTROLUX” trademark (the “.” domain suffix being typically ignored for this comparison). The Disputed Domain Names, as registered by the Respondent, incorporate the ELECTROLUX trademark and (in the case of the First Disputed Domain Name) also the AEG trademark. The aggregation of two of the Complainant’s trademarks in the case of the First Disputed Domain Name does nothing to remove the confusing similarity – if anything it increases it.
Accordingly the Panel finds that the Disputed Domain Names are identical or confusingly similar to the Complainant’s trademark and hence the first condition of paragraph 4(a) of the Policy has been fulfilled. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy non-exhaustively lists three circumstances that demonstrate a right or legitimate interest in a domain name:
i. before any notice to you of the dispute, your use of, or demonstrable preparations to use the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
ii. you (as an individual, business or other organisation) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
iii. you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
None of these apply in the present circumstances. The Complainant has not authorised, licensed, or permitted the Respondent to register or use the Disputed Domain Names or to use the ELECTROLUX or AEG trademarks. The Complainant has rights in the ELECTROLUX and AEG trademarks which precede the Respondent’s registration of the Disputed Domain Names. The Respondent cannot be said to be commonly known by the Disputed Domain Names. The Complainant has therefore established a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Names and thereby the burden of production shifts to the Respondent to produce evidence demonstrating rights or legitimate interests in respect of the Disputed Domain Names (see for example Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455).
The Panel finds that the Respondent has failed to produce any evidence to establish any rights or legitimate interests in the Disputed Domain Names. Accordingly the Panel finds that the Respondent has no rights or legitimate interests in the Disputed Domain Names and the second condition of paragraph 4(a) of the Policy has been fulfilled. C. Registered or Used in Bad Faith
In the present circumstances, the distinctive nature of the ELECTROLUX and AEG trademarks, and the evidence as to the extent of the reputation the Complainant enjoys in the ELECTROLUX and AEG trademarks, and the confusingly similar nature of the Disputed Domain Names to the ELECTROLUX and AEG trademarks, and the lack of any explanation from the Respondent as to why it registered the Disputed Domain Names leads the Panel to conclude the registration was in bad faith. In the present case, the Panel concludes that it is inconceivable that the Respondent selected the Disputed Domain Names independently and without knowledge of the Complainant or its products. As to the use, the fact that there is no evidence before the Panel of any use of the Disputed Domain Names by the Respondent does not necessarily avoid a finding of bad faith. In the circumstances of this case the Panel adopts the approach set out in the WIPO Overview 2.0 at section 3.2 as follows “[w]ith comparative reference to the circumstances set out in paragraph 4(b) of the UDRP deemed to establish bad faith registration and use, panels have found that the apparent lack of so-called active use (e.g., to resolve to a website) of the domain name without any active attempt to sell or to contact the trademark holder (passive holding), does not as such prevent a finding of bad faith. The panel must examine all the circumstances of the case to determine whether the respondent is acting in bad faith. Examples of what may be cumulative circumstances found to be indicative of bad faith include the complainant having a well-known trademark, no response to the complaint having been filed, and the registrant’s concealment of its identity. Panels may draw inferences about whether the domain name was used in bad faith given the circumstances surrounding registration, and vice versa. Some panels have also found that the concept of passive holding may apply even in the event of sporadic use, or of the mere ‘parking’ by a third party of a domain name (irrespective of whether the latter should also result in the generation of incidental revenue from advertising referrals)”.
In this case the highly distinctive nature of the Complainant’s ELECTROLUX and AEG trademarks, leads the Panel to conclude that both the registration and use are in bad faith. The Panel cannot conceive of any credible use for the Disputed Domain Names that did not involve an attempt to trade off the Complainant’s reputation and this must have been apparent to the Respondent when registering the Disputed Domain Names. Further the Panel notes the Respondent has not filed a Response and hence has not availed itself of the opportunity to present any case of legitimate use that it might have. The Panel infers that none exists.
The Panel finds that the Disputed Domain Names have been registered and are being used in bad faith. Accordingly the third condition of paragraph 4(a) of the Policy has been fulfilled 7. Decision
For all the foregoing reasons, in accordance with paragraphs 4 of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Names, and , be transferred to the Complainant.
Nick J. Gardner
Sole Panelist
Date: August 22, 2015
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