WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Aktiebolaget Electrolux v. Vahit Yuksel
Case No. D2010-0928
1. The Parties
The Complainant is Aktiebolaget Electrolux of Stockholm, Sweden, represented by Melbourne IT Digital Brand Services AB, Sweden.
The Respondent is Vahit Yuksel of Istanbul, Turkey.
2. The Domain Names and Registrar
The disputed domain names <frigidaireservis.org> and <frigidaireservisi.org> are registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 8, 2010. On June 8, 2010, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com a request for registrar verification in connection with the disputed domain names. On June 13, 2010, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com 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 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 18, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was July 8, 2010. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on July 14, 2010.
The Center appointed Kaya Köklü as the sole panelist in this matter on July 19, 2010. 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.
In accordance with the Rules, paragraph 11, and since the Parties have not agreed otherwise, the language of the administrative proceedings is the language of the Registration Agreement (i.e., English).
The date scheduled for the issuance of the Panel’s decision was August 10, 2010.
4. Factual Background
The Complaint is a Swedish joint stock company founded in 1901 and registered as a Swedish company in 1919. It is a leading and widely known producer of household appliances and equipment, in particular in the cleaning and kitchen sector.
The Complainant and its group members own trademark registrations in nearly all major jurisdictions, including but not limited to trademark protection for the mark FRIGIDAIRE. Registered owner of the FRIGIDAIRE marks is Electrolux Home Products, a company within the Complainant’s group. In so far, the Complainant provided a power of attorney that it has the right to represent Electrolux Home Products in these administrative proceedings.
Since 1989, FRIGIDAIRE is also a registered trademark in Turkey.
Furthermore, the Complainant has registered and operates its trademark FRIGIDAIRE as domain names under several gTLDs and ccTLDs worldwide, e.g., <frigidaire.com>.
According to the Complaint, the disputed domain names <frigidaireservis.org> and <frigidaireservisi.org> were created on April 30, 2009.
According to the current record, the Respondent is of Turkish origin and located in Istanbul, Turkey.
When the Panel visited the disputed domain names on August 2, 2010, both disputed domain names were linked to a homepage offering different kind of services for Frigidaire products in the Turkish language.
5. Parties’ Contentions
The Complainant argues that it is one of the global leaders in home appliances and appliances for professional use, selling more than 40 million products to customers in 150 countries each year.
The Complainant further argues that the trademark FRIGIDAIRE enjoys a worldwide reputation and acquired the status of a recognized trademark within the areas for appliances and equipment for kitchen, cleaning and outdoor products.
With its Complaint, the Complainant claims the transfer of both disputed domain names.
It argues that the disputed domain names are identical or at least confusingly similar to the Complainant’s trademarks as they fully incorporate the Complainant’s FRIGIDAIRE trademark. The Complainant further argues that the only difference between the disputed domain names and the Complainant’s trademark is that the disputed domain names additionally comprise generic terms in the Turkish language, namely “servis” and “servisi” (which means in the English language “service” and “service for something”). The use of such generic terms may even add to the confusing similarity as they create the impression that the services offered under the disputed domain names are linked to official services provided by the Complainant or its group members.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain names and has registered and used the disputed domain names in bad faith.
In this regard, the Complainant states that it has never granted a permission of licence to the Respondent to use the trademark FRIGIDAIRE. In addition, the Complainant alleges that the Respondent has never used and does not intend to use the mark FRIGIDAIRE in connection with a bona fide offering of goods and services.
Finally, it is argued that the Respondent must have known the Complainant’s recognized trademark well before the registration of the disputed domain names.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable and on the basis of the Complaint where no Response has been submitted.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements are satisfied:
(i) The domain names are identical or confusingly similar to the trademark in which Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the domain names; and
(iii) The domain names have been registered and are being used in bad faith.
Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complaint, Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.
However, concerning the uncontested information provided by the Complainant, the Panel may as appropriate accept the provided factual allegations in the Complaint as true, Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
In this regard, it is noted that an independent research by visiting the Internet sites linked to the disputed domain names has been performed by the Panel. The competence of the Panel to perform such independent research is in line with previous UDRP decisions, e.g., Hesco Bastion Limited v. The Trading Force Limited, WIPO Case No. D2002-1038.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain names <frigidaireservis.org> and <frigidaireservisi.org> are confusingly similar to the Complainant’s trademarks.
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights regarding the term FRIGIDAIRE. As evidenced by the Complaint, the Complainant owns several FRIGIDAIRE trademarks registered in various jurisdictions worldwide, since 1989 also in Turkey.
Although not identical, the disputed domain names <frigidaireservis.org> and <frigidaireservisi.org> fully incorporate the Complainant’s FRIGIDAIRE trademark.
The disputed domain names differ from the Complainant’s trademarks only through the addition of the generic Turkish words “servis” and “servisi” which stand for “service” and “service for something” in the English language. The Panel finds that the incorporation of such generic terms does not negate the confusing similarity between the Complainant’s trademarks and the disputed domain names. On the contrary, the use of such generic terms may even increase the confusing similarity as it may cause the impression that the offered service is linked to an official service provided by the Complainant and its group members.
In other words, the Panel concludes that the disputed domain names which wholly incorporate the Complainant’s registered trademark FRIGIDAIRE are sufficient to establish confusing similarity for the purposes of the Policy (c.f. Aktiebolaget Electrolux v. Serbay Narin, WIPO Case No. D2009-1444; Kabushiki Kaisha Hitachi Seisakusho (d/b/a Hitachi Ltd) v. Arthur Wrangle, WIPO Case No. D2005-1105).
In light of the above, the Panel finds that both disputed domain names are confusingly similar to the Complainant’s FRIGIDAIRE trademark and therefore concludes that the first requirement under paragraph 4(a) of the Policy is fulfilled.
B. Rights or Legitimate Interests
The Panel also concludes that the Respondent has not demonstrated any right or legitimate interest in the disputed domain names.
While the burden of proof in principle rests with the Complainant, the Panel has recognized that this would result in the impossible task of proving a negative, in particular as requiring the lack of rights or legitimate interests is primarily within the knowledge of the Respondent. Therefore, the Panel believes that the Complainant is only required to make out a prima facie case in order to meet the requirements in paragraph 4(a)(ii) of the Policy, Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.
The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to demonstrate a right or legitimate interest in the disputed domain names according to the Policy, paragraph 4(a)(ii) and 4(c).
With its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondent has no trademark, license or any similar right to use the disputed domain names.
In the absence of a Response by the Respondent, there is no indication in the file that the Respondent is commonly known by the disputed domain names.
In addition, the Respondent has failed to demonstrate any of the three nonexclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or any other evidence of a right or legitimate interest in the domain names. In particular, the Respondent has failed to show that the Internet site linked to the disputed domain names has been used in connection with a bona fide offering of goods and services.
There is also no indication that the Respondent is making a legitimate non-commercial or fair use of the disputed domain names without the intent for commercial gain to misleadingly divert users or to tarnish the trademark at issue. On the contrary, the offered services under the disputed domain names indicate that the Respondent has an aim to gain commercial benefit by using domain names which incorporate the Complainant’s trademark FRIGIDAIRE.
As a conclusion, the Panel finds that the Complainant has also satisfied the requirements of 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Panel is of the opinion that the Respondent has registered and used the disputed domain names in bad faith.
The Panel is well aware of the reputation and recognition of the Complainant’s trademark FRIGIDAIRE. The Panel believes that the Respondent must have known of the Complainant’s trademark when registering the disputed domain names. This is particularly likely as the mark FRIGIDAIRE is also widely known in Turkey, where the Respondent comes from. Furthermore, it needs to be mentioned that both disputed domain names have been registered well after the Complainant’s trademark FRIGIDAIRE has become recognized in Turkey and the world.
It rather appears that the Respondent has registered the disputed domain names solely for the purpose of creating an association with the Complainant, in particular its products and services. The Panel is convinced that the Respondent has intentionally registered the disputed domain names to offer services for FRIGIDAIRE products by creating the impression that this offer is made by or at least with the authorisation of the Complainant or one of its group members. The Panel is convinced that the Respondent has intended to mislead Internet users who may search for official repair services for their FRIGIDAIRE branded products.
On the basis of the current record, the Panel cannot conceive of any good faith use of the disputed domain names by the Respondent. The Panel rather finds that the Respondent’s failure to respond to the Complaint even supports the conclusion that it has registered and used the disputed domain names in bad faith in order to mislead consumers.
The Panel therefore concludes that the disputed domain names were registered and used in bad faith and that the Complainant has also satisfied the third element of the Policy, namely, paragraph 4(a)(iii) of the Policy.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names <frigidaireservis.org> and <frigidaireservisi.org> be transferred to the Complainant.
Dated: August 8, 2010