WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Aktiebolaget Electrolux v. Yalcin Senturk
Case No. D2012-0742
1. The Parties
Complainant is Aktiebolaget Electrolux of Stockholm, Sweden, represented by Melbourne IT Digital Brand Services, Sweden.
Respondent is Yalcin Senturk of Konya, Turkey.
2. The Domain Names and Registrar
The disputed domain names <konyaaegservisi.com> and <konyaelectroluxservisi.com> (the “Domain Names”) are registered with Spot Domain LLC dba Domainsite.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 10, 2012. On April 11, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On April 11, 2012, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on April 19, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was May 9, 2012. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on May 10, 2012.
The Center appointed John R. Keys, Jr. as the sole panelist in this matter on May 22, 2012. 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
Complainant AB Electrolux, a Swedish company founded in 1901 and registered in 1919, is a leading producer of appliances and equipment for use in kitchens and in cleaning. Electrolux products include refrigerators, dishwashers, washing machines, vacuum cleaners, and cookers sold under brand names such as ELECTROLUX, AEG, AEG-ELECTROLUX and others.
Complainant owns trademark registrations for ELECTROLUX and AEG in more than 150 countries around the world. These include, by way of several most relevant examples, the European Community, Sweden, the United States of America, and Turkey. See, for example, the following:
AEG, Community Registration No. 008954513, dated August 2, 2010;
AEG, Community Registration No. 003970761, dated November 24, 1998;
AEG, Swedish Patent and Trademark Office, registration No. 008954513, dated August 2, 2010;
AEG, Turkish Patent Institute, Registration No. 2002/19616, dated August 5, 2002;
AEG, USPTO Registration No. 3008151, dated October 25, 2005;
ELECTROLUX, Community Registration No. 000077925, dated September 16, 1998;
ELECTROLUX, Swedish Patent and Trademark Office, Registration No. 77925, dated April 1, 1996;
ELECTROLUX, Turkish Patent Institute, Registration No. 83/078814, dated August 1, 2003;
ELECTROLUX, USPTO Registration No. 3066400, dated March 7, 2006.
Complainant owns registrations for these marks, at least in Sweden and the United States, from as early as the 1920’s and 1930’s.
The record shows also that Complainant has hundreds of registered domain names, including <electrolux.com>, <electrolux.com.tr>, <aeg.com>, and <aeg.com.tr> (“.tr” being the country code for Turkey.)
Respondent registered the Domain Names on November 20, 2011, and December 11, 2011. Complainant’s trademarks thus clearly predate by many years Respondent’s registration of the Domain Names.
The <konyaaegservisi.com> Domain Name opens to a web page promoting repair services which shows Complainant’s AEG trademark prominently at the top of the page and, separately, in smaller type, the name “konya servisi.” The page shows pictures, apparently of Complainant’s products.
The <konyaelectroluxservisi.com> Domain Name opens to a web page promoting repair services which shows Complainant’s ELECTROLUX trademark prominently at the top of the page and, separately, in smaller type, the name “konya servisi.” The page shows pictures, apparently of Complainant’s products.
5. Parties’ Contentions
Complainant contends that the Domain Names are identical or confusingly similar to Complainant’s AEG and ELECTROLUX trademarks, respectively. Each Domain Name incorporates as the dominant element one of Complainant’s well-known trademarks in its entirety. Both Domain Names add to Complainant’s trademark the words “konya”, which is the name of a city in Turkey, and “servisi”, which means “service” in English. Complainant contends that neither word sufficiently distinguishes the Domain Name from the trademark and does not negate confusing similarity. The confusingly similar Domain Names create a false impression of association with Complainant and exploit the goodwill Complainant has in its trademarks.
Complainant contends that Respondent does not have rights or legitimate interests in the Domain Names. Complainant has not licensed or otherwise authorized Respondent to use Complainant’s trademarks. Respondent is not an authorized dealer or repair service for Complainant’s products and has never had a business relationship with Complainant. Respondent has no registered trademarks or trade names corresponding to the Domain Names.
Further, Respondent is not using the Domain Names in connection with a bona fide offering of goods or services. In this regard, Complainant contends that Respondent is using Complainant’s trademarks to mislead consumers in connection with his offering of repair services for household products. Without authorization from Complainant, Respondent’s websites suggest association with Complainant, using Complainant’s trademarks and logos and textual references to Complainant, and contain no disclaimers of any kind that such a relationship does not in fact exist.
Complainant contends that the Domain Names were registered and are being used in bad faith. Complainant notes in this regard that Respondent clearly was aware of Complainant’s trademarks when he chose them in registering the Domain Names, that there is in fact no relationship between Complainant and Respondent, and that Respondent is using the Domain Names intentionally to attempt to attract, for commercial gain, Internet users to his websites by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation or endorsement of the websites.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Respondent did not respond to the Complaint. The Panel therefore considers whether Respondent has been given adequate notice of the proceeding. The evidence indicates the Center sent the Complaint in electronic form and the Written Notice in hard copy by courier to Respondent at the addresses provided in the Complaint, in Respondent’s registration information available in the WhoIs and from the Registrar. The Panel concludes that the Center discharged its responsibility under the Rules to notify Respondent of the Complaint and the administrative proceeding and appears to have achieved actual notice.
Where there is no response to the complaint, the panel must decide the dispute based upon the complaint. Rules, paragraphs 5(e) and 14(a). The panel is to decide the complaint on the basis of the statements and documents submitted, in accordance with the Policy, the Rules and any principles of law the panel deems applicable. Rules, paragraph 15(a). Under the Rules, paragraph 14(b), Respondent’s failure to answer entitles the Panel to “draw such inferences therefrom as it considers appropriate”.
Under the Policy, paragraph 4(a), Complainant must prove each of three elements of its case in order to obtain the requested relief:
(i) Respondent’s Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) Respondent registered and is using the Domain Name in bad faith.
A. Identical or Confusingly Similar
The record shows clearly that Complainant has legal rights in both the AEG and the ELECTROLUX trademarks by reason of many decades of use and numerous registrations worldwide, including in particular, for purposes of considering this case, the European Community, Sweden, and Turkey.
Prior UDRP panels have found both the ELCTROLUX and AEG marks to be widely known or well-known. See AB Electrolux v. Ilgaz Fatih Micik, WIPO Case No. D2009-0777 and Aktiebolaget Electrolux v. Jose Manuel, WIPO Case No. D2010-2031. This Panel will treat them as such but does not regard this as determinative of the case.
Respondent purposely chose to incorporate Complainant’s trademarks into his Domain Names for their value as trademarks. This alone has been held by prior UDRP panels sufficient to establish confusing similarity. Scania CV AB (Publ) v. Caliskan Grubu Bulent Gurbuz, WIPO Case No. D2011-1678. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 1.2.
Respondent’s addition to Complainant’s trademarks in each Domain Name of the words “konya” and “servisi” do not negate confusing similarity between the Domain Names and the trademarks for purposes of the Policy. The consensus view of UDRP panels is that “The addition of merely generic, descriptive, or geographical wording to a trademark in a domain name would normally be insufficient in itself to avoid a finding of confusing similarity under the first element of the UDRP. Panels have usually found the incorporated trademark to constitute the dominant or principal component of the domain name.” WIPO Overview 2.0, paragraph 1.9. See Nintendo of America Inc. v. Fernando Sascha Gutierrez, WIPO Case No. D2009-0434.
In this case, “konya”, the name of a city in Turkey, is a geographic term which is insufficient to distinguish the Domain Name from Complainant’s trademarks. See Aktiebolaget Electrolux v. Uzunoglu Group Ltd. Sti, Erol Uzunoglu, WIPO Case No. D2011-0766 (names of Turkish cities not distinctive). The word “servisi” (“service” in English) is generic or merely descriptive of Respondent’s purported activities and thus fails also to distinguish the Domain Names from Complainant’s trademarks. See Scania CV AB (Publ) v. Caliskan Grubu Bulent Gurbuz, WIPO Case No. D2011-1678; AB Electrolux v. Ilgaz Fatih Micik, WIPO Case No. D2009-0777. In the Panel’s view, the trademarks are clearly the dominant elements of both Domain Names and are being exploited by Respondent for their ability to create a false impression of association with Complainant and the likelihood of confusion on the part of the Internet user.
The Panel finds each Domain Name to be confusingly similar to Complainant’s corresponding trademark. Complainant has thus proved the first element of its case.
B. Rights or Legitimate Interests
Complainant must prove that Respondent has no rights or legitimate interests in respect of the Domain Names. The allegations of the Complaint and the supporting exhibits are sufficient here to establish a prima facie case that Respondent does not have rights or legitimate interests in respect of the Domain Names.
There is no evidence that Respondent has ever registered a trademark or trade name using either of the Domain Names or that Respondent has been commonly known by either Domain Name. The record suggests that Respondent’s business is known as “konya servisi.”
Complainant denies that it has authorized Respondent to use either its ELECTROLUX or its AEG trademark as part of a domain name or in connection with his business or that Complainant has or has ever had a business relationship with Respondent. Respondent derives no rights or legitimate interests in the Domain Names from any authority granted by Complainant. Aktiebolaget Electrolux v. Jose Manuel, WIPO Case No. D2010-2031; Dr. Ing. h.c. F. Porsche AG v. Ron Anderson, WIPO Case No. D2004-0312.
Under the Policy, a respondent may try to show that it has rights or legitimate interests by demonstrating use of the domain name in connection with a bona fide offering of goods or services. Policy, paragraph 4(c)(i). On the record before the Panel, Complainant makes the prima facie case that Respondent operates a business in Konya, Turkey providing repair services for household products, including products manufactured by Complainant, possibly including products of other manufacturers, that Respondent is using Complainant’s trademarks to attract Internet users to his websites where Respondent, without Complainant’s authorization, again prominently features Complainant’s trademarks and logos, shows pictures of Complainant’s products, makes textual references to Complainant’s brand names, and fails to disclose that Respondent in fact has no relationship whatsoever with Complainant. See AB Electrolux v. Karaca Grup Ltd. Sti, WIPO Case No. D2011-1626; LEGO Juris A/S v. Probuilders, WIPO Case No. D2011-0226 (respondent’s use of complainant’s own logo implies connection and is not bona fide); Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903 (disclosure of relationship requirement). Respondent thus misleads potential consumers to believe that he is authorized by Complainant to repair, perhaps to distribute, their products when that is not in fact the case. See Drexel University v. David Brouda, WIPO Case No. D2001-0067. Respondent uses the goodwill Complainant has in its trademarks to promote his own business by misleading the public and possibly harming Complainant’s trademarks in the process. See Aktiebolaget Electrolux v. Jose Manuel, WIPO Case No. D2010-2031. The Panel thus finds that Complainant has made a sufficient prima facie showing that Respondent is not using the Domain Names in connection with a bona fide offering of services that would confer rights or legitimate interests in the Domain Names upon Respondent.
Complainant’s prima facie case having been established, the burden shifts to Respondent to come forward to produce allegations or evidence to rebut that case, which Respondent, in default, has chosen not to do. WIPO Overview 2.0, paragraph 2.1. See AB Electrolux v. Ilgaz Fatih Micik, WIPO Case No. D2009-0777. The Panel thus finds that Respondent has no rights or legitimate interests in the Domain Names and concludes that Complainant has proved the second element of its case.
C. Registered and Used in Bad Faith
Complainant must show that Respondent registered and is using the Domain Name in bad faith. Under paragraph 4(b)(iv) of the Policy, the following is evidence of registration and use in bad faith:
By using the domain name, you [Respondent] have intentionally attempted to attract, for commercial gain, Internet users to your web site 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 your web site or location or of a product or service on your web site or location.
Respondent registered the Domain Names incorporating Complainant’s long-established, registered, and widely-known trademarks in their entireties. Respondent clearly knew Complainant’s AEG and ELECTROLUX trademarks and intended to use them in connection with his repair service business by creating a false impression for the Internet user that Respondent is associated with or sponsored by Complainant. This constitutes registration of both Domain Names in bad faith. See AB Electrolux v. Ilgaz Fatih Micik, WIPO Case No. D2009-0777; Aktiebolaget Electrolux v. Jose Manuel, WIPO Case No. D2010-2031. The Panel considers this the only reasonable inference from the facts, and notes that Respondent has not chosen to offer an alternative.
Respondent also uses the Domain Names in bad faith. Respondent is using the two Domain Names, each of which is confusingly similar to Complainant’s trademarks, to attract Internet users to two commercial websites where he features Complainant’s trademarks, logos and products to promote his repair service business. All of this creates the strong impression that Respondent is authorized by Complainant as a repair service for Complainant’s products, which is not in fact the case. Respondent has no authority from or business relationship with Complainant. Respondent’s website does not describe the nature of his relationship with Complainant and does nothing to disclaim the relationship falsely suggested by the prominent use of Complainant’s trademarks. See AB Electrolux v. Ilgaz Fatih Micik, WIPO Case No. D2009-0777. The Panel infers from all of the foregoing that Respondent’s purpose is to create and foster confusion and to mislead the public as to Respondent’s relationship to Complainant. See Aktiebolaget Electrolux v. Jose Manuel, WIPO Case No. D2010-2031.
The Panel finds that Respondent is intentionally creating a likelihood of confusion with Complainant’s trademarks as to the source, sponsorship, affiliation, or endorsement of Respondent’s websites and that this establishes Respondent’s bad faith use of the Domain Names within the meaning of the Policy. See Aktiebolaget Electrolux v. Uzunoglu Group Ltd. Sti, Erol Uzunoglu, WIPO Case No. D2011-0766 (respondent intentionally using complainant’s trademarks in domain names to create false impression that the respondent is an authorized repair and service provider for the complainant’s products); Aktiebolaget Electrolux v. Priscilla Quaiotti Passos, WIPO Case No. D2011-0388.
Respondent’s failure to respond to Complainant’s cease and desist letter and, subsequently, to the Complaint further support the inference of bad faith.
Based upon all of the foregoing, the Panel concludes that Respondent registered and is using the Domain Names in bad faith and that Complainant, therefore, has established the third and final element of its case.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names <konyaaegservisi.com> and <konyaelectroluxservisi.com> be transferred to Complainant.
John R. Keys, Jr.
Dated: June 5, 2012