The Complainant is AB Electrolux of Stockholm, Sweden, represented by SILKA Law AB, Sweden.
The Respondent is Mehdi Miranbeygi of Tehran, Iran (Islamic Republic of). 2. The Domain Name and Registrar
The disputed domain name (the "Domain Name") is registered with IRNIC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 14, 2017. On August 15, 2017, the Center transmitted by email to IRNIC a request for registrar verification in connection with the disputed domain name. On August 16, 2017, 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 August 21, 2017.
The Center verified that the 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 August 25, 2017. In accordance with the Rules, paragraph 5(a), the due date for Response was September 14, 2017. On September 15, 2017, the Center notified the Respondent's default.
The Center appointed Gareth Dickson as the sole panelist in this matter on September 27, 2017. 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's name is AB Electrolux. It was founded in 1901 and is the owner of numerous trade mark registrations around the world, including:
1. Iranian registration 1593/2671 for ELECTROLUX, registered in 1944; and
2. International Registration number 802 025 for AEG, registered in 2002 and designating Iran.
The panel in Aktiebolaget Electrolux v. Mister Manager,WIPO Case No. D2008-0823 found that ELECTROLUX is a famous trade mark worldwide.
The Domain Name was registered by the Respondent on November 7, 2016, and resolves to a website offering repair services. 5. Parties' Contentions A. Complainant
The Complainant states that it is a global leader in home and professional appliances. It has 60,000 employees and in 2014 had sales under the ELECTROLUX mark of SEK 112 billion. It claims that it's AEG and ELECTROLUX trade marks are well-known in Iran, inferring that the Respondent must have been aware of them when registering the Domain Name.
The Complainant further contends that the Domain Name is confusingly similar to both the AEG and the ELECTROLUX mark. The Complainant cites the decision in Aktiebolaget Electrolux v. serkan candan, / Domain Admin,WIPO Case No. D2014-0522, in support of this argument: "When trademarks belonging to the same owner are used in combination in a disputed domain name, such use not only causes confusion but exacerbates it".
Since the Respondent uses the Domain Name to direct users to a commercial website which uses the Complainant's AEG mark as well as the trade marks of competitor, such as MIELE and BEKO, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Complainant states that it has not authorized the Respondent to register the Domain Name, and argues that the Respondent's use of the Domain Name does not satisfy the criteria for resellers laid out in Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903, in particular due to the lack of any disclaimer on the website and to the use of the Complainant's mark to promote brands which compete with the Complainant. The Respondent does not claim to have been unaware of the Complainant's trade marks.
Finally, the Complainant states that the Respondent's failure to respond to its cease and desist letter is evidence of the Respondent's bad faith as is its registration of a domain name with two of the Complainant's trade marks in their entirety, with only the addition of a descriptive and therefore non-distinctive geographic element, without any permission to do so. The Complainant alleges that the Respondent is attempting to take advantage of the AEG and ELECTROLUX trade marks by attempting to attract visitors to the Respondent's website for commercial gain. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, the Complainant bears the burden of proving that:
i. the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
ii. the Respondent has no rights or legitimate interests in respect of the Domain Name; and
iii. the Domain Name has been registered or is being used in bad faith.
These criteria are cumulative. The failure of the Complainant to prove any one of them means the Complaint must be denied. A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the AEG mark and in the ELECTROLUX mark.
In the circumstances of this Complaint, the Panel also finds that the combination of both the AEG mark and the ELECTROLUX mark into the Domain Name, together with only the addition of the geographically descriptive "iran" and the country code Top-Level Domain (ccTLD) suffix ".ir", renders the Domain Name confusingly similar to the Complainant's trade marks.
The Panel therefore finds that the Domain Name is confusingly similar to a trade mark in which the Complainant has rights. B. Rights or Legitimate Interests
The Respondent has not replied to the Complainant's cease and desist letter or the Complaint or otherwise participated in these proceedings. The Panel therefore accepts the Complainant's contentions regarding the Respondent's lack of rights or legitimate interests in respect of the Domain Name.
In particular, the Panel accepts that the Complainant has not authorized the Respondent to use either AEG or ELECTROLUX in the Domain Name; that the Respondent has never been known by either of those trade marks; and that the use of the Complainant's trade marks to offer to Internet users goods and services that compete with the Complainant's goods and services is not a permitted or legitimate use of those trade marks.
As the Complainant points out, the use of a third party's trade mark to offer genuine goods or services can in some circumstances be evidence of a bona fide offering of goods and services and thus constitute a legitimate interest in a domain name (also see Section 2.8.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"). For the purposes of the Policy, those circumstances have been set out in Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903 ("Oki Data"), which sets out four requirements which must all be met for the use to be considered legitimate. These requirements may be stated briefly as follows:
- The Respondent must actually be offering the goods or services at issue;
- The Respondent must use the site to sell only the trade marked goods;
- The site must accurately disclose the registrant's relationship with the trade mark owner; and
- The Respondent must not try to corner the market in all domain names, thus depriving the trade mark owner of reflecting its own mark in a domain name.
Even assuming that the goods offered by the Respondent via the Domain Name are genuine goods first put on the market by the Complainant or with its consent, the Respondent cannot benefit from Oki Data since the goods offered under the Domain Name are not limited to the those bearing the AEG or ELECTROLUX marks, but include goods which compete directly with goods sold under the those marks. Furthermore the Respondent does not appear to have accurately disclosed the lack of any relationship between it and the Complainant, notwithstanding that a commercial relationship will be inferred by the Respondent's use of two of the Complainant's trade marks in the Domain Name.
The Panel therefore finds that the Respondent has no rights or legitimate interests in respect of the Domain Name. C. Registered or Used in Bad Faith
The Panel accepts that the Complainant's ELECTROLUX mark is well-known in Iran and that the Respondent was aware of both the AEG mark and the ELECTROLUX when it registered the Domain Name, as well as the fact that it did not have the Complainant's authorization to incorporate either or both of those trade marks into a domain name. The Respondent's registration of the Domain Name was therefore in bad faith.
The Panel also accepts that the Respondent is using the Complainant's trade marks to offer for sale goods and services which compete directly with the Complainant's goods and services. Such use of the Domain Name is also in bad faith.
The Panel therefore finds that the Respondent registered and is using the 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 be transferred to the Complainant.
Gareth Dickson
Sole Panelist
Date: October 11, 2017
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