WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Aktiebolaget Electrolux v. Hungary
Case No. D2012-1135
1. The Parties
The Complainant is Aktiebolaget Electrolux of Stockholm, Sweden, represented by Melbourne IT Digital Brand Services, Sweden.
The Respondent is Hungary of Budapest, Hungary.
2. The Domain Names and Registrar
The disputed domain names <electrolux-hűtőgép.info>, [xn--electrolux-htgp-onb08ooq.info] and <electrolux-hűtőszekrény.info>, [xn--electrolux-htszekrny-s2b69t8ua.info] are registered with Wild West Domains, LLC
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 1, 2012. On June 1, 2012, the Center transmitted by email to Wild West Domains, LLC a request for registrar verification in connection with the disputed domain names. On June 4, 2012, Wild West Domains, LLC transmitted by email to the Center its verification response disclosing registrant information for the disputed domain names which differed from the named Respondent in the Complaint. The Center sent an email communication to the Complainant on June 12, 2012, providing the registrant information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on June 12, 2012.
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 June 13, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was July 3, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 9, 2012.
The Center appointed Fabio Angelini as the sole panelist in this matter on August 13, 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
The Complainant, AB Electrolux, is a Swedish joint stock company founded in 1901 and registered as a Swedish company in 1919. The Complainant is a world leading producer of appliances and equipment for kitchen and cleaning. The Complainant is also one of the largest producers in the world of similar equipment for professional users. In addition, it is the market leader in many of the individual product categories in which it compete(s). The Complainant 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. The Complainant’s products include refrigerators, dishwashers, washing machines, vacuum cleaners and cookers sold under brands such as ELECTROLUX, AEG, AEGELECTROLUX, ZANUSSI, EUREKA AND FRIGIDAIRE. In 2010, the Complainant had sales of SEK 109 billion and 55,150 employees. The Complainant alleges that the trademark ELECTROLUX has acquired the status as well-known trademark within the areas for appliances and equipment for kitchen, cleaning and outdoor products due to extensive and long-term use on products and services as well as relevant investments in advertising with respect to the products and services that are marked by the trademarks. The Complainant has registered the trademark ELECTROLUX as a word and figurative mark in several classes in more than 150 countries all over the world. The trademark ELECTROLUX was registered before the registration of the disputed domain names on February 3, 2012 which is several decades after the world wide trademark registrations of the mark ELECTROLUX. The Complainant has also registered the trademark ELECTROLUX as domain names under almost 700 gTLDs and ccTLDs worldwide, among these; <electrolux.com>, <electrolux.net>, <electrolux.info>, <electrolux.hu> and <electrolux.org>.
5. Parties’ Contentions
The Complainant alleges that the disputed domain names are confusingly similar to Complainant's mark ELECTROLUX. The Complainant contends that the Punycode domain names <xn--electrolux-htgp-onb08ooq.info> and <xn—electroluxhtszekrny-s2b69t8ua.info> resolve into the Unicode domain names <electroluxhőtıgép.info> and <electrolux-hőtıszekrény.info> (also referred to as internationalized domain names IDN). According to the Complainant previous panels have found the Punycode and translated Unicode domain names to be equal, since the use of IDN enables the use of internationalized domain names in various scripts that are supported by Unicode. In the present case both the Punycode domain names and the IDN version of the domain names encompass the word “electrolux”, which is identical to the registered trademark ELECTROLUX. Furthermore, for the Complainant the addition of the suffixes “hőtıgép” and “hőtıszekrény” (which terms, in Hungarian, mean “fridge” and “refrigerator”) is not relevant and will not have any impact on the overall impression of the dominant part of the domain name, “Electrolux”, but since they both describe one of the Complainant’s well-known product categories are capable to strengthen the impression that the disputed domain names are in some way connected with the Complainant.
The Complainant also argues that the Respondent has no rights or legitimate interests in the disputed domain names and that the Respondent's use of the domain names cannot create a legitimate interest or be considered as bona fide, since the Respondent has no registered trademarks or trade names corresponding to the domain names and neither license or authorization of any other kind, has been given by the Complainant to the Respondent, to use the trademark. The Complainant notes that the disputed domain names are connected to the homepage of a company named Elektrodomo Kereskedelmi Kft, at the time the Complaint was filed and according to the Complainant it would be more suitable to name the website in line with the actual company name, while the Respondent has intentionally chosen the disputed domain names based on a registered trademark which connects to a website appearing to be an official shop and service center endorsed or sponsored by the Complainant so as to mislead Internet users to a commercial website.
Finally, the Complainant argues that the Respondent registered and is using the disputed domain names in bad faith. The Complainant notes that the ELECTROLUX mark has the status of well-known trademark in the field of white goods, and that, because the Respondent's web page there are links displayed at the top of the website linking to the Respondent’s other commercial sites where white goods are sold, the Respondent must have known the value and goodwill associated with the ELECTROLUX mark. The Complainant also alleges that on March 27, 2012, it sent a cease and desist letter to the Respondent. In the cease and desist letter the Complainant advised the Respondent that the unauthorized use of the ELECTROLUX trademark within the domain names violated the Complainant’s rights and thus requested a voluntary transfer, offering compensation for the expenses of registration and transfer fees. No response was received, two reminders were sent on May 9 and May 11, 2012, respectively both of which went without response.
On the basis of the above, the Complainant concludes that the Respondent registered and is using the disputed domain names in bad faith because the disputed domain names are designed to attract Internet users who are looking for Complainant’s services and cause confusion with the Complainant’s marks and websites and disrupt the Complainant’s business by diverting consumers away from the Complainant’s official website. Consequently, the Complainant holds that the Respondent is using the disputed domain names to intentionally attempt to attract, for commercial gain, Internet users to the website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the website, and accordingly the Complainant seeks transfer of the disputed domain names.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Panel agrees with the Complainant that under the circumstances of this case there is a high similarity which may easily lead Internet users into confusion and therefore the Panel is satisfied that the first element has been proven. The disputed domain names, <electrolux-hűtőgép.info> and <electrolux-hűtőszekrény.info>, are composed of the Complainant's well-known trademark ELECTROLUX with the addition of generic terms like “hutogep” (refrigerator in Hungarian) and “hűtőszekrény” (icebox, freezer in Hungarian) which, by making clear and direct reference to the Complainant most renown products would reasonably increases the confusion of Internet users (see also what already held by the panel in AB Electrolux v. Ilgaz Fatih Micik, WIPO Case No. D2009-0777).
The Panel finds therefore that the disputed domain names are confusingly similar to the registered trademarks of the Complainant and that the requirements of paragraph 4(a)(i) of the Policy therefore are fulfilled.
B. Rights or Legitimate Interests
While under the UDRP rules, the overall burden of proof rests with the Complainant, panels have recognized the difficulty of proving a negative fact which requires information that normally the respondent possesses. Therefore, panels have held that once a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. (De Agostini S.p.A. v. Marco Cialone, WIPO Case No. DTV2002-0005).
The Panel finds that the Complainant has made a sufficiently convincing prima facie case that the Respondent lacks rights or legitimate interests, given that the Respondent's name is not and does have any resemblance with “Electrolux”, that there is no relationship whatsoever between the parties and the Respondent is not using the domain names in connection with a bona fide offering of goods or services, so as to confer rights or legitimate interests in any of them. On the contrary, since the disputed domain names are used to identify the homepage of a company named Elektrodomo Kereskedelmi Kft it appears reasonable and credible that the Respondent has intentionally chosen to register these domain names so as to mislead consumers.
In light of the foregoing and in absence of any contrary argument by the Respondent, who is in default, the Panel is satisfied that the second element as well has been proven.
C. Registered and Used in Bad Faith
In order for the panel to find that a domain name was registered and is being used in bad faith, the Panel must examine separately two issues which take places in different moments: 1) whether or not bad faith existed when the domain name was registered; and 2) whether or not the domain name is being used in bad faith.
It is not always easy to draw a clear line between these two circumstances, given that the former requires the evaluation of a static event, while the latter requires examining the dynamics of a conduct during a period of time and the Panel is also aware that many instances it is quite difficult to keep these two circumstances separated.
That said, as for the first condition, in the absence of evidence which may be construed to directly allow the panel to find bad faith at the registration date, the Panel must look at a combination of factors which, put together, might support a reasonable inference of bad faith as at the registration date, and several panels have held that registering and using domain names which correspond to well-known trademarks trademark suggests opportunistic bad faith (LEGO Juris A/S v. Reiner Stotte, WIPO Case No. D2010-0494; and Sanofi-aventis v. Nevis Domains LLC, WIPO Case No. D2006-0303).
In the present case, this Panel, on the basis of the evidence provided and in the absence of any contrary argument by the Respondent, finds it reasonable to agree with the Complainant's argument that the Respondent knew about the Complainant's trademark ELECTROLUX and thus it registered the disputed domain names in bad faith.
As to the second condition, the Panel is persuaded that the Respondent is using the disputed domain names in bad faith since the disputed domain names are used to identify the homepage of a company named Elektrodomo Kereskedelmi Kft and as such they are designed to attract Internet users who are looking for the Complainant’s services and cause confusion with the Complainant’s marks and websites and disrupt the Complainant’s business by diverting consumers away from the Complainant’s official website.
Consequently, the Panel finds that the Complainant has made a credible case that the Respondent's use of the disputed domain names is deliberately trying to gain unfair benefit from the renowned and widespread knowledge of the Complainant's trademark and the Respondent is using the domain names to intentionally attempt to attract, for commercial gain, Internet users to the website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the website.
As a result, the Panel finds that the disputed domain names were registered and are being used by the Respondent in bad faith and considers the requirements of paragraph 4(a)(iii) of the Policy to be fulfilled.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and15of the Rules, the Panel orders that the domain names <electrolux-hűtőgép.info>, [xn--electrolux-htgp-onb08ooq.info] and <electrolux-hűtőszekrény.info>, [xn--electrolux-htszekrny-s2b69t8ua.info] be transferred to the Complainant.
Dated: August 27, 2012