World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Aktiebolaget Electrolux v. Ferhat TUNALI, FBS (DI_4010121)/SENOL KARAKAYA/PrivacyProtect.org

Case No. D2010-1791

1. The Parties

The Complainant is Aktiebolaget Electrolux of Stockholm, Sweden, represented by Melbourne IT Digital Brand Services, Sweden.

The Respondent is Ferhat TUNALI, FBS (DI_4010121) of Istanbul, Turkey; SENOL KARAKAYA of Istanbul, Turkey; PrivacyProtect.org of Netherlands.

2. The Domain Names and Registrars

The disputed domain names <electrolux-servisi.net> and <electrolux-servis.net> are registered with FBS Inc. The disputed domain name <electroluxservisleri.org> is 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 October 25, 2010. On October 25, 2010, the Center transmitted by email to FBS Inc. and Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com a request for registrar verification in connection with the disputed domain names. On October 27, 2010, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com transmitted by email to the Center its verification response disclosing registrant “Ferhat TUNALI, FBS (DI_4010121)” and contact information for the disputed domain name <electroluxservisleri.org> which differed from the named Respondent and contact information in the Complaint. On October 29 and 30, 2010, FBS Inc. transmitted by emails to the Center its verification response disclosing registrant “SENOL KARAKAYA” and contact information for the disputed domain names <electrolux-servisi.net> and <electrolux-servis.net> which differed from the named Respondent and contact information in the Complaint.

The Center sent an email communication to the Complainant on November 2, 2010 providing the registrant and contact information disclosed by the Registrar and correct Registrar information, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on November 4, 2010.

On November 5, 2010, the Center transmitted an email to the parties in both Turkish and English regarding the language of the proceeding. On November 8, 2010, the Complainant submitted a request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding by the specified due date.

The Center verified that the Complaint together with the amendment to 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”).

On November 12, 2010, the Center informed the parties that:

“The Center has taken note that the present case involves 3 domain names, with seemingly distinct registrants, as well as of the Complainant’s submissions in the Complaint regarding Respondent identity, commonality and requested consolidation.

[It would] appear to be at least prima facie grounds sufficient to warrant putting the Complainant’s request for consolidation before a Panel.

The Center will accordingly proceed to commencement and formal notification on that basis. A copy of the Complaint will be duly forwarded to the contact information of all identified registrants, and a response (or responses) will be accepted by the Center from any who wish to submit a reply to the Complaint, and placed before the panel for consideration in due course.”

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 November 12, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was December 2, 2010. The Respondent (neither individually nor collectively) did not submit any response. Accordingly, the Center notified the Respondent’s default on December 3, 2010.

Noting inter alia the lack of response, the similarity in the composition of the disputed domain names, that 2 of the disputed domain name resolves to the same page, the use of the same privacy protection service, the Panel determines that on a balance of the probabilities the disputed domain names are indeed held by the same beneficial domain name holder. See UDRP Rules paragraph 3(c); Blue Cross and Blue Shield Association, Empire HealthChoice Assurance, Inc. dba Empire Blue Cross Blue Shield and also dba Empire Blue Cross v. Private Whois Service / Search and Find LLC. / Michigan Insurance Associates / 4 Letter Domains Inc. / New York Health Ins., WIPO Case No. D2010-1699.

The Center appointed Kaya Köklü as the sole panelist in this matter on December 7, 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 for the disputed domain names <electrolux-servisi.net> and <electrolux-servis.net> is the Turkish language, the Panel determines in accordance with the Complainant’s request and paragraph 11(a) of the Rules, that the language of these administrative proceedings shall be the English language. The Panel finds that it would be inappropriate given the circumstances of this case 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.

4. Factual Background

The Complainant is a well-known 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 has registered the trademark ELECTROLUX as a word and figure mark in several classes in more than 150 countries worldwide, including Turkey. All of them were registered long before the registration of the disputed domain names.

Furthermore, the Complainant has registered and operates the trademark ELECTROLUX as domain names under several gTLDs and ccTLDs, e.g. <electrolux.com>, <electrolux.net> and <electrolux.org>.

Based on the current record, the disputed domain names <electrolux-servis.net> and <electrolux-servisi.net> were created on May 15, 2010. The disputed domain name <electroluxservisleri.org> was created on May 21, 2010.

The Respondent seems to be located in Istanbul, Turkey as well as in the Netherlands.

As evidenced by the Complaint, the Respondent offers at its websites linked to the disputed domain names an original parts and repair service for Electrolux products in Turkey. The content and the design of all websites linked to the disputed domain names are apparently identical. Furthermore, each of the disputed domain names comprises not only the mark ELECTROLUX but also one of the generic terms “servis”, “servisi” or “servisler” (which stand for “service”, “service for” or “services” in English).

5. Parties’ Contentions

A. Complainant

The Complainant argues that it is one of the leading companies in home appliances and appliances for professional use worldwide, selling more than 40 million products to customers in 150 countries every year.

It is alleged that the trademark ELECTROLUX enjoys a worldwide reputation due to extensive and long-term use on products and devices of the Complainant and has acquired the status of a recognized trademark within the areas for appliances and equipment for kitchen, cleaning and outdoor products.

As a remedy in these administrative proceedings, the Complainant requests the transfer of the disputed domain names.

The Complainant in particular points out that the disputed domain names are identical or at least confusingly similar to the Complainant’s trademark as it fully incorporates the Complainant’s ELECTROLUX trademark. The Complainant argues that the only difference between the disputed domain names and the Complainant’s trademark is that the disputed domain names additionally comprise some generic terms in the Turkish language which are all related to the term “service”. It is argued that the use of such additional generic terms may even add to the confusingly similarity as they create the impression that any service offered under the disputed domain names is linked to official services provided by the Complainant. The Complainant further brings forward the argument that the addition of the top-level domains “.net” and “.org” does not have any impact on the overall impression of the dominant part of the disputed domain names and is therefore irrelevant to determine the confusing similarity of the trademark.

Furthermore, the Complainant argues that the Respondent has no rights or legitimate interest in respect of the disputed domain names and has registered and used the disputed domain names in bad faith. In this regard, the Complainant underlines that it has never granted a permission or license to the Respondent to use the trademark ELECTROLUX.

In addition, it is alleged that the Respondent has never used and does not intend to use the mark ELECTROLUX in connection with a bona fide offering of goods and services.

Finally, the Complainant is convinced that the Respondent must have known the ELECTROLUX trademark well before the registration of the disputed domain names.

B. Respondent

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 other 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 is obliged to prove that each of the three following elements is satisfied:

(i) The disputed domain names are identical or confusingly similar to the trademark in which the Complainant has rights;

(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain names; and

(iii) The disputed 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 appropriately accept the proved reasonable factual allegations in the Complaint as true, Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.

A. Identical or Confusingly Similar

The Panel finds that the disputed domain names are confusingly similar to the Complainant’s trademark ELECTROLUX.

First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights regarding its mark ELECTROLUX. The Complainant has provided sufficient evidence showing that it owns a large number of ELECTROLUX trademarks in more than 150 jurisdictions worldwide, most of them registered well before the year 2000. According to the current record, long-standing trademark protection is also given in Turkey, where the Respondent is apparently located.

Although not identical, the disputed domain names fully incorporate the Complainant’s trademark ELECTROLUX.

The disputed domain names mainly differ from the respective trademark by the addition of the Turkish generic terms “servis”, “servisi” or “servisler”, which stand for “service”, “service for” or “services” in the English language.

The Panel finds that the incorporation of such generic terms does not negate the confusing similarity between the Complainant’s trademark and the disputed domain names. Moreover, the full inclusion of the Complainant’s well-known trademark may even enhance the false impression that any offered product or service under the disputed domain names is officially linked to the Complainant.

With other words, the Panel is of the opinion that the disputed domain names which wholly incorporate the Complainant’s registered trademark ELECTROLUX is sufficient to establish confusing similarity for the purpose of the Policy (see Kabushiki Kaisha Hitachi Seisakusho (d/b/a Hitachi Ltd.) v. Arthur Wrangle, WIPO Case No. D2005-1105).

Finally, the Panel agrees with the Complainant’s arguments that the addition of the top-level domains “.net” and “.org” does not influence the overall impression of the disputed domain names and is therefore irrelevant to determine the confusing similarity of the trademark.

Given the findings above, the Panel concludes that the first requirement under paragraph 4(a) of the Policy is fulfilled.

B. Rights or Legitimate Interests

The Panel further asserts that the Respondent has not demonstrated any right or legitimate interest in the disputed domain names.

While the burden of proof in principle remains with the Complainant, the Panel 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 and sphere of the Respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the responsibility shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain names 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 file any evidence or arguments to demonstrate a right or legitimate interest in the disputed domain names according to the Policy, paragraphs 4(a)(ii) and 4(c).

With its Complaint, there is uncontested prima facie evidence that the Respondent has no trademark, license or any similar right to use the Complainant’s mark in the disputed domain names.

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 names.

In addition, the Respondent has failed to demonstrate any of the other 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 disputed domain names. In particular, the Respondent has failed to show that the disputed domain names have been used in connection with a bona fide offering of goods or services. Based on the current record, the Respondent especially cannot claim to have right or legitimate interest in the disputed domain names as a reseller or repair service for any of the Complainant’s products. This would only be conceivable if the Respondent accurately discloses on its websites linked to the disputed domain names its legal and business relation to the Complainant and efficiently prevents any confusing similarity with official and authorized services provided by the Complainant or its subsidiaries. In the present case, the Respondent does not adequately disclose the relationship, or lack thereof, between the Respondent and the Complainant. It is even the opposite as the Respondent uses the ELECTROLUX trademark figure as an eye-catcher on its welcome pages without any visible disclaimer or something similar, and thus conveying the false impression that the Respondent is an authorized repair center for the Complainant’s products.

Finally, there is also no indication that the Respondent is making a legitimate noncommercial or fair use of the disputed domain names without the intent for commercial gain to misleadingly divert users or to tarnish the ELECTROLUX trademark.

Hence, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

The Panel is further of the opinion that the Respondent has registered and is using the disputed domain names in bad faith.

The Panel is well aware of the reputation and recognition of the Complainant’s trademark ELECTROLUX. The Panel is convinced that the Respondent must have known of this trademark when registered the disputed domain names. This is in particular likely as the disputed domain names have been registered well after the Complainant’s trademark ELECTROLUX has become recognized in the world. This is in particularly likely as the mark ELECTROLUX is also well-known in Turkey, where the Respondent is apparently located.

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 with its products and services. According to the print-outs of the websites linked to the disputed domain names provided as Annexes to the Complaint, the Panel is convinced that the Respondent has intentionally registered the disputed domain names to offer services for Electrolux products by creating the false impression that the Respondent is an authorized repair and service center for the Complainant’s products. Not only the disputed domain names but also the content and the design of the websites linked to these domain names give the impression that the Respondent intended to mislead Internet users who may search for official repair services for their Electrolux branded products.

Also, the Panel finds that the Respondent’s failure to respond to the Complaint supports the conclusion that it has registered and used the disputed domain names in bad faith in order to mislead consumers.

In light of the above, the Panel cannot conceive of any good faith use of the disputed domain names by the Respondent.

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.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain names <electrolux-servisi.net>, <electrolux-servis.net> and <electroluxservisleri.org> be transferred to the Complainant.

Kaya Köklü
Sole Panelist
Dated: December 21, 2010

 

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