WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
AB Electrolux v. Muhammed Erol
Case No. D2010-0940
1. The Parties
The Complainant is AB Electrolux of Stockholm, Sweden, represented by Melbourne IT Corporate Brand Services AB, Sweden.
The Respondent is Muhammed Erol of Istanbul, Turkey.
2. The Domain Name and Registrar
The disputed domain name <frigidaireservis.com> is registered with FBS Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 9, 2010. On June 9, 2010, the Center transmitted by email to FBS Inc. a request for registrar verification in connection with the disputed domain name. On June 14, June 15 and June 23, 2010, FBS Inc. 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 July 1, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was July 21, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 22, 2010.
The Center appointed Kaya Köklü as the sole panelist in this matter on August 3, 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.
Although the language of the Registration Agreement is the Turkish language, the Panel determines in accordance with the Complainant’s request and the Rules, paragraph 11(a), that the language of these administrative proceedings shall be the English language. Taking into account the disputed domain name and the present circumstances, the Panel finds that it would be inappropriate to conduct the proceedings in the Turkish language and request a Turkish translation of the Complaint while the Respondent has failed to raise any objection or even to respond to the Complaint or the Center’s communication with regard to the language of the proceedings even though communicated in Turkish and in English.
The date scheduled for the issuance of the Panel’s decision was August 17, 2010.
4. Factual Background
The Complainant 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 the trademark FRIGIDAIRE as domain names under several gTLDs and ccTLDs worldwide, e.g., <frigidaire.com>.
According to the Complaint, the disputed domain name <frigidaireservis.com> was created on March 13, 2009.
According to the current record, the Respondent is a Turkish individual and located in Istanbul, Turkey.
There was no content provided, when the Panel visited the disputed domain name on August 9, 2010.
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 the disputed domain name.
It argues that the disputed domain name is identical or at least confusingly similar to the Complainant’s trademarks as it fully incorporates the Complainant’s FRIGIDAIRE trademark. The Complainant further argues that the only difference between the disputed domain name and the Complainant’s trademark is that the disputed domain name additionally comprises a generic term in the Turkish language, namely “servis” (which means in the English language “service”). The use of such a generic term may even add to the confusing similarity as it creates the impression that any service offered under the disputed domain name is 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 name and has registered and used the disputed domain name in bad faith.
In this regard, the Complainant states that neither the Complainant nor any other of its group members has ever granted 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 FRIGIDAIRE trademark well before the registration of the disputed domain name.
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 disputed domain name is 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 name; and
(iii) The domain name has been registered and been 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 site linked to the disputed domain name has been performed by the Panel on August 9, 2010. The competence of the Panel to perform such independet 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 name <frigidaireservis.com> is 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 and its group members own several FRIGIDAIRE trademarks registered in various jurisdictions worldwide, since 1989 also in Turkey.
Although not identical, the disputed domain name <frigidaireservis.com> fully incorporates the FRIGIDAIRE trademark.
The disputed domain name differs from the respective trademarks only through the addition of the generic Turkish word “servis” which stands for “service” in the English language. The Panel finds that the incorporation of such a generic term does not negate the confusing similarity between the Complainant’s trademarks and the disputed domain name. On the contrary, the Panel finds that the use of such a generic term may even increase the confusing similarity as it may cause the impression that any offered service under the disputed domain name is linked to an official service provided by the Complainant and/or its group members.
In other words, the Panel concludes that the disputed domain name which wholly incorporates the Complainant’s registered trademark FRIGIDAIRE is 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 the disputed domain name is 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 name.
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 the evidence needed to show the Respondent’s lack of rights or legitimate interests is primarily within the knowledge of the Respondent. Therefore, the Panel believes that the Complainant is required to make out a prima facie case before the burden of production shifts to the Respondent to show it has rights or legitimate interest in the domain name 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 name 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 name.
In the absence of a Response by the Respondent, there is also no indication in the file that the Respondent is commonly known by the disputed domain name.
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 name. In particular, the Respondent has failed to show that the disputed domain name has been used in connection with a bona fide offering of goods and services.
There is finally no indication that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name without the intent for commercial gain to misleadingly divert users or to tarnish the trademark at issue.
Hence, 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 name 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 this trademark when registering the disputed domain name. This is particularly likely as the mark FRIGIDAIRE is also recognized in Turkey, where the Respondent comes from. Furthermore, it needs to be mentioned that the disputed domain name has 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 name 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 name 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 also 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 name 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 name in bad faith in order to mislead consumers.
The Panel therefore concludes that the disputed domain name was 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 name, <frigidaireservis.com> be transferred to the Complainant.
Dated: August 16, 2010