WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Aktiebolaget Electrolux v. Ricardo Alberto Puentes Mora
Case No. D2011-1393
1. The Parties
The Complainant is Aktiebolaget Electrolux of Stockholm, Sweden, represented by Melbourne IT Digital Brand Services, Sweden.
The Respondent is Ricardo Alberto Puentes Mora, Oviedo, Spain.
2. The Domain Name and Registrar
The disputed domain name <serviciostecnicoelectrolux.com> is registered with GoDaddy.com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 17, 2011. On August 17, 2011, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On the same date, GoDaddy.com, 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 August 19, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was September 8, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 9, 2011.
The Center appointed Nicolas Ulmer as the sole panelist in this matter on September 28, 2011. The Panel finds that it was properly constituted and 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 is a major multinational company and a leading worldwide producer of appliances and equipment for kitchen and cleaning use. The Complainant owns numerous registered trademarks for the word ELECTROLUX in many different countries and regions of the world, including the European Community (see Annex 6 to the Complaint). The Complainant also claims that the mark ELECTROLUX has been used by Complainant in more than 700 gTLDs and ccTLDs, including in the domain name <electrolux.es>, which was registered by Electrolux, Spain (see Annex 7).
The Respondent appears to be an individual in Oviedo, Spain, that is running or is linked with a business for the servicing and repair of electric equipment and appliances.
The disputed domain name was registered on or about April 12, 2011. The disputed domain name resolves or resolved to a site that offers and solicits repair of other services for appliances and electric equipment.
5. Parties’ Contentions
The Complainant submits that all elements of paragraph 4(a) of the Policy are here met and proven with the consequence that the disputed domain name must be transferred to the Complainant. More specifically, the Complainant points out that the disputed domain name is clearly confusingly similar to the Complainant’s famous mark, and that the “likelihood of confusion includes an obvious association with the trademark of the Complainant.” The Complainant points out that the disputed domain name site contains not only the word ELECTROLUX, but also the Complainant’s logo, thus, heightening the confusion; which confusion, the Complainant asserts, is not dissipated by any disclaimer. The Complainant further makes clear that the Respondent is not an authorized dealer of the Complainant or in any other manner entitled to use the Complainant’s trademark, and that it’s improper current use of the Complainant’s mark in an apparent repair business can create no legitimate rights to such use by the Respondent. Finally, the Complainant asserts that its trademark and name are very well known in Europe and throughout the world, such that the Respondent must have registered the disputed domain name in bad faith with knowledge of the same. The Respondent’s subsequent use of the disputed domain name is also alleged to be in bad faith as the Respondent was employing the disputed domain name, and its association with the Complainant’s trademarks and fame illegitimately to divert consumers to the Respondent, for the latter’s commercial gain. The Complainant sent at least two cease and desist letters to the Respondent, but received no response. The Complainant’s allegations are, to the extent necessary, discussed further in Section 6, below.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The disputed domain name incorporates the entirety of the Complainant’s well-known trademark. The prefix “servicio tecnico” does nothing to diminish this confusing similarity, and in some respects augments it. The Spanish term servicio tecnico means “technical services” and implies “product support”. Thus the clear implication of such words in the disputed domain name—that the Respondent is some genre of authorized Electrolux dealer or service provider—tends to increase the confusing similarity between the disputed domain name and the trademark in which the Complainant has rights. It follows that the first element of paragraph 4(a) of the Policy is proven.
B. Rights or Legitimate Interests
The Complainant makes clear that the Respondent is not a licensee or authorized dealer of the Complainant, and has not otherwise acquired any rights in the Complainant’s trademarks. The Complainant further points out that no rights may attach to the Respondent through the illegitimate use of the Complainant’s trademark where it was chosen in order to create a misleading impression of an association with the Complainant. See Drexel University v. David Brouda, WIPO Case No. D2001-0067. In the absence of any reply or contrary proof by the Respondent, the Complainant has met its burden under this element of the Policy, and the Panel concludes that the Respondent has neither rights nor legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
The evidence here supports the Complainant’s contention, that the Respondent can only have registered the disputed domain in bad faith and with knowledge of the Complainant’s. From the content of the site to which the disputed domain name leads it is clear that the Respondent is in the business of servicing electric household equipment; the choice of a domain name including the well-known and trademarked name ELECTROLUX cannot, to say the very least, have been serendipitous. The Respondent’s subsequent use of the disputed domain name was also in bad faith, as the evidence here is that the Respondent, by using the disputed domain name was in effect misleading users and customers into thinking that he was in some way connected to or sponsored by the Complainant. Accord, Aktiebolaget Electrolux v. José Manuel, WIPO Case No. D2010-2031. To trade in this way on Complainant’s trademarks and reputation is bad faith use. See paragraph 4(b)(iv) of the Policy. The Panel notes that the Complainant’s allegation that there is “no proper disclaimer” displayed on the website to which the disputed domain name resolves is somewhat incorrect. In fact the last line of that site recites: “No somos el servicio técnico official de ninguna de las marques que aparece en esta web” (in English: “we are not the official technical service of any of the brands appearing on this site”). But the existence of a disclaimer –and here it is a rather weak and obscure disclaimer– does not cure bad faith where, as here, bad faith has been established by other factors and there is a strong likelihood of an Internet user suffering “initial interest confusion” before such user reaches the disclaimer. See, e.g., Estée Lauder Inc. v. estelauder.com, estelauder.net and Jeff Hanna, WIPO Case No. D2000-0869; see also, consensus view, WIPO Legal Index at paragraph 3.5.
The failure of the Respondent to answer the Complainant’s cease and desist notices, while not dispositive on the issue, is further indicia of the Respondent’s bad faith.
It follows that the Complainant has met its burden under paragraph 4(a)(iii) of the Policy.
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 <serviciostecnicoelectrolux.com> be transferred to the Complainant.
Dated: September 29, 2011