World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

AB Electrolux v. Mitra Laundry

Case No. D2011-1351

1. The Parties

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

The Respondent is Mitra Laundry of Bandung, Indonesia.

2. The Domain Name and Registrar

The disputed domain name <electrolux-laundry-kiloan.com> is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 8, 2011. On August 8, 2011, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 9, 2011, the Registrar 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 sent an email communication to the Complainant on August 11, 2011 providing the Registrar’s contact information, and requested the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on August 11, 2011.

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”).

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 17, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was September 6, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 7, 2011.

The Center appointed Susanna H.S. Leong as the sole panelist in this matter on September 15, 2011. 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, AB Electrolux (“Electrolux”), is a Swedish joint stock company founded in 1901 and was registered as a Swedish company in 1919. Electrolux is a global leader in home appliances and appliances for professional use, selling more than 40 million products to customers in 150 countries every year. Electrolux products include refrigerators, dishwashers, washing machines, vacuum cleaners and cookers sold under brands such as Electrolux, Aeg, Aeg-electrolux. In 2009, Electrolux had sales of SEK 109 billion and 51,000 employees. Electrolux is a global company and operates its business all over the world, including in Indonesia.

The Complainant has registered the trademark ELECTROLUX as a word and figure mark in several classes in more than 150 countries all over the world including in Indonesia. The trademark ELECTROLUX was registered long before the registration of the disputed domain name. The Complainant has also registered the trademark ELECTROLUX as a domain name under almost 700 gTLDs and ccTLDs worldwide, among these: <electrolux.com>, <electrolux.co.id>.

The disputed domain name <electrolux-laundry-kiloan.com> was registered on February 17, 2011. The disputed domain name is currently connected to a web site which appears to have information about a company called “Laundry Kiloan”. The website contains links to a Facebook page, LinkedIn page and also RSS feed.

5. Parties’ Contentions

A. Complainant

Identical or Confusingly Similar

The Complainant contends that it is the owner of the world wide registered trademark ELECTROLUX and the disputed domain name is confusingly similar to the trademark owned by the Complainant. The dominant part of the domain name <electrolux-laundry-kiloan.com> comprises the word “Electrolux”, which is identical to the registered trademark ELECTROLUX, which has been registered by the Complainant as a trademark and domain names in numerous countries all over the world. The fame of the trademark has been confirmed in previous UDRP decisions, for example: AB Electrolux v. Ilgaz Fatih Micik, WIPO Case No. D2009-0777.

As a result of the reputation of the trademark ELECTROLUX there is a considerable risk that the public will perceive the Respondent’s domain name either as a domain name owned by the Complainant or that there is some kind of commercial relation with the Complainant. The addition of the terms “laundry” and “kiloan” to a trade or service mark is legally inconsequential and does not prevent a finding of confusing similarity.

Rights or Legitimate Interests

The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name on the following grounds:

1. The Respondent does not have any registered trademarks or trade names corresponding to the Domain Name.

2. No license or authorization of any other kind to use the trademark has been given by the Complainant to the Respondent.

3. The mere registration of a domain name does not give the Respondent a right or a legitimate interest in respect of the domain name.

4. There is no evidence that would suggest that the Respondent has been using ELECTROLUX in any other way that would give it any legitimate rights in the name. Thus, the Respondent may not claim any rights established by common usage.

5. The Respondent is not using the domain name in connection with a bona fide offering of goods or services.

Registered and Used in Bad Faith

The Complainant contends that the disputed domain name was registered and is being used in bad faith. The Respondent was aware of the rights the Complainant has in the trademark ELECTROLUX and the value of said trademark, at the point of the registration. There is no connection between the Respondent and the Complainant but this has not been made clear by the Respondent on its website. By using the disputed domain name in such a manner, the Respondent is not making a legitimate noncommercial or fair use without intent for commercial gain but is misleadingly and diverting consumers for its own commercial gain. All these evidence support the contention that the Respondent must be considered to have registered and is using the domain name in bad faith.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding and obtain the transfer of the disputed domain name, the Complainant must establish that each of the three following elements is satisfied:

1. the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

2. the Respondent has no rights or legitimate interests in respect of the disputed domain name; and

3. the disputed domain name has been registered and is being used in bad faith.

Paragraph 4(a) of the Policy clearly states that the burden of proof lies with the Complainant to establish that all these three elements are satisfied in this proceeding.

Furthermore, pursuant to paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Moreover, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences therefrom, as it deems appropriate.

On the basis of the evidence introduced by the Complainant and in particular with regard to the content of the relevant provisions of the Policy, (paragraphs 4(a),(b),(c)), the Panel concludes as follows:

A. Identical or Confusingly Similar

The Complainant has produced substantial evidence to demonstrate that it has registered trademark rights in the mark ELECTROLUX in many countries throughout the world.

In assessing the degree of similarity between the Complainant’s trademark and the disputed domain name, the Panel shall have regard to the degree of visual, aural or conceptual similarity between them and where appropriate, evaluate the importance to be attached to these different elements. The issue of degree of similarity between the Complainant’s mark and the disputed domain name is to be considered from the perspective of the average consumer of the goods or services concerned and in this case, the average consumer is the Internet user seeking to purchase or download the Complainant’s products.

The disputed domain name comprises (a) an exact reproduction of the Complainant’s trademark ELECTROLUX; and (b) the addition of the words “laundry” and “kiloan” after it, separated by hyphens, followed by the gTLD “.com”. The most prominent and distinctive part of the disputed domain name is the word “Electrolux” which is the Complainant’s registered trademark. The words “laundry” and “kiloan’’ do not serve to distinguish the disputed domain name from the Complainant’s trademark ELECTROLUX. To the contrary, given the considerable reputation that the Complainant’s trademark enjoys in relation to its products including refrigerators, dishwashers, washing machines, vacuum cleaners and cookers, there is indeed a great likelihood that someone looking at the disputed domain name <electrolux-laudry-kiloan.com> may think that it belongs to the Complainant or is in some way connected with the Complainant. It is an accepted principle that the addition of suffixes such as “.com” or “.net” being the generic top-level domain is not a distinguishing factor.

Bearing in mind the following factors, in particular (a) the considerable reputation of the Complainant’s trademark; (b) the distinctive character of the Complainant’s mark ELECTROLUX; (c) the dominant component of the disputed domain name; and (d) that the disputed domain name evokes an association with the Complainant’s trademark and its products, the Panel therefore finds that the disputed domain name is confusingly similar to a trademark or service mark ELECTROLUX in which the Complainant has rights.

The Panel finds for the Complainant on the first part of the test.

B. Rights or Legitimate Interests

Based on the following reasons, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name:

1. the Respondent has not provided evidence of a legitimate use of the domain name or reasons to justify the choice of the words “Electrolux-laundry-kiloan” in its business operations;

2. there was no evidence to show that the Complainant has licensed or otherwise permitted the Respondent to use its trademark or to apply for or use any domain names incorporating the trademark;

3. there is no indication whatsoever that the Respondent is commonly known by the disputed domain name and/or is using the domain name in connection with a bona fide offering of goods or services;

4. the Complainant and its mark ELECTROLUX enjoy a considerable reputation with regard to consumer products and electrical appliances in many countries all over the world. Consequently, in the absence of contrary evidence from the Respondent, the ELECTROLUX mark is not one that traders could legitimately adopt other than for the purpose of creating an impression of an association with the Complainant.

According to paragraph 4(c) of the Policy, a respondent may establish its rights or legitimate interests in the domain name, among other circumstances, by showing any of the following elements:

“(i) before any notice to you [Respondent] 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 [Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) you [Respondent] 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.”

The Panel notes that the Respondent has not provided evidence of circumstances of the type specified in paragraph 4(c) of the Policy, or of any other circumstances giving rise to a right to or legitimate interest in the disputed domain name. The Panel further notes that the Respondent has failed to submit a Response to the Complaint filed against it. In particular, the Respondent has failed to make submissions to demonstrate that it has rights or legitimate interests to the disputed domain name. In accordance with the Rules paragraph 14, the Panel thus draws such inferences as she considers appropriate, which are that the Respondent appears to be unable to adduce evidence of any rights or legitimate interests to the disputed domain name.

The Panel finds for the Complainant on the second part of the test.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the domain name in bad faith, namely:

(i) circumstances indicating that the Respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of the complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the domain name; or

(ii) the Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or

(iii) the Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product.

The Panel concludes based on the case file that the circumstances referred to in paragraph 4(b)(iv) of the Policy is applicable to the present case and upon the evidence of these circumstances it is adequate to conclude that the Respondent has registered and used the disputed domain name in bad faith.

Firstly, the Panel finds that the Complainant and its mark ELECTROLUX enjoys a considerable reputation with regard to consumer products and electrical appliances in many countries all over the world. The Complainant has also established that it has considerable exposure and presence in the Internet. Therefore, the Panel finds that it is unlikely that the Respondent would not have had actual notice of the Complainant’s trademark rights at the time of the registration of the disputed domain name. Consequently, it would have been pertinent for the Respondent to provide an explanation of its choice in the disputed domain name, failing which the Panel draws the conclusion that the disputed domain name was registered in bad faith with intent to create an impression of association with the Complainant and its products.

The Panel finds that the Complainant has adduced evidence and proved that by using a confusingly similar disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website. Furthermore, the Respondent has through the use of confusingly a similar domain name created a likelihood of confusion with the Complainant’s trademark and this constitutes a misrepresentation to the public that the Respondent’s website is associated or connected with the Complainant. In the absence of evidence to the contrary and rebuttal from the Respondent, the choice of the disputed domain name and the conduct of the Respondent as far as the website to which the domain name resolves are indicative of registration and use of the disputed 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 domain name <electrolux-laundry-kiloan.com> be transferred to the Complainant.

Susanna H.S. Leong
Sole Panelist
Dated: September 29, 2011

 

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