WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Aktiebolaget Electrolux (AB Electrolux) v. Pedro Cabrera, Servielectrolux

Case No. D2013-0142

1. The Parties

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

The Respondent is Pedro Cabrera, Servielectrolux of Caracas, Bolivarian Republic of Venezuela.

2. The Domain Name and Registrar

The disputed domain name <servielectrolux.com> is registered with Dattatec.com de Irazoqui Veronica Palmira (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 22, 2013. On January 22, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 7, 2013, 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 (also see Section 7).

On February 7, 2013, the Center transmitted the language of the proceedings document to the parties in both English and Spanish. On February 7, 2013, the Complainant requested English to be the language of the proceedings. The Respondent did not submit its comments.

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 (by email and written notice by courier to the WhoIs address but not delivered due to incomplete address) the Respondent of the Complaint, and the proceedings commenced on February 15, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was March 7, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 8, 2013.

The Center appointed Manuel Moreno-Torres as the sole panelist in this matter on March 18, 2013. 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. Language of the proceedings

According to paragraph 11 of the Rules: “unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”

Thus, the language of the proceeding should generally be the language of the Registration Agreement, that is to say, Spanish. However, the Complainant has requested for English to be the language of the proceeding. Under the circumstances, the Center notified the Complaint to the Respondent both in English and Spanish, provided the Respondent an opportunity to file is response in either English or Spanish, however the Respondent has failed to submit a response.

In this case, the Panel finds the Respondent’s default is evidence of his lack of interest in this administrative proceeding and its outcome. The goal of paragraphs 10(b) and 11 of the Rules taken together is to guarantee fairness in language issues by giving full consideration to the parties. Therefore, the Panel agrees that under the circumstances English be the language of the proceeding and that the decision be rendered in English.

5. 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’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 trademark ELECTROLUX was registered before the registration of the disputed domain name on September 17, 2012. The Complainant has also registered the trademark ELECTROLUX as domain names under almost 700 generic top-level domains (gTLD) and country code top-level domains (ccTLD) worldwide, among these <electrolux.com>, <electrolux.net>, <electrolux.info> and <electrolux.org>.

From the evidence submitted by the Complainant, as annexes to the Complaint, the Complainant is the proprietor of numerous marks containing the expression “electrolux” worldwide. A selection of the registered ELECTROLUX marks which are applicable in the Bolivarian Republic of Venezuela, the apparent country of residence of the Respondent, are as follows:

The trademark ELECTROLUX has the status as well-known trademark.

6. Parties’ Contentions

A. Complainant

The disputed domain name comprises the trademark ELECTROLUX which is to be considered as well known according to several previous UDRP decisions. Therefore, the disputed domain name is confusingly similar as it adds non-distinguishing prefixes and suffixes and leads to obvious association with the trademark of the Complainant.

The Respondent has no rights or legitimate interests in the disputed domain name since the Respondent does not own any trademark for the disputed domain name. The Complainant also alleges that the Respondent has not been authorized, licensed or given consent in any form. Moreover, the mere registration of a domain name does not give the owner a right or a legitimate interest in respect of the domain name.

The Respondent is not making a legitimate noncommercial use since the website operated is aimed at disrupting, for commercial gain, the Complainant’s business: “the Respondent is trying to sponge off the Complainant’s world famous tradermark”. The Complainant, also states that the Respondent does not adequately disclose the relationship, or lack thereof, between the parties and does therefore convey the false impression that the Respondent is an authorized service center for the Complainant’s products and finally, states that the Respondent is using the Complainant’s logo.

In respect to the third element, the Complainant asserts that the disputed domain name was registered in bad faith because the Respondent’s website reproduces a very well-known trademark and therefore it is obvious that the Respondent knew of the ELECTROLUX trademark at the time of the registration. Moreover, the Complainant alleges that the Respondent is using the disputed domain name 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. Therefore, the Respondent’s goal is to mislead users into believing that the disputed domain name is in some way connected to the Complainant and its business.

B. Respondent

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

7. Discussion and Findings

In order for the Panel to decide to grant the remedy of transfer of the disputed domain name to the Complainant it is necessary that the Complainant proves, as required by paragraph 4(a) of the Policy, that:

(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

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

(iii) the disputed domain name has been registered and is being used in bad faith.

The fact that the Respondent has not provided a Response to the Complaint does not relieve the Complainant of the burden of proving its case. In the absence of a Response, paragraph 5(e) of the Rules expressly requires the Panel to “decide the dispute based upon the complaint”. Under paragraph 14(a) of the Rules in the event of such a default the Panel is still required “to proceed with a decision on the complaint”, whilst under paragraph 14(b) it “shall draw such inferences there from as it considers appropriate”.

Thus where a party fails to present evidence which is in its control, the panel may draw inferences based on the evidence available and particular circumstances of the case (Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy’s Antiques, WIPO Case No. D2000-0004; State of Wisconsin v. Pro‑Life Domain, Inc., WIPO Case No. D2003-0432; La Caixa D’Estalvis I Pensions de Barcelona v. José Antonio Bernal, WIPO Case No. D2006-1637). Here, the Respondent has defaulted, and it is appropriate in the present case for the Panel to accept the facts asserted by the Complainant and to draw adverse inferences of fact against the Respondent.

The Panel also notes the exchange of email communications between the Center and the Registrar concerning the identity of the Respondent. In light of the Registrar’s response to the Center’s verification requests and based on the publicly-available WhoIs information, the Panel finds that “Pedro Cabrera, Servielectrolux” is the registrant of the disputed domain name.

A. Identical or Confusingly Similar

The Complainant has made continuous use of its registered and incontestable marks where ELECTROLUX appears to be a distinctive element and has spent much time, money and effort promoting the mark and has established significant good will.

Previous UDRP panels have decided that the addition of generic and descriptive terms to an otherwise distinctive trademark is to be considered confusingly similar to the trademark (Sanofi-Aventis v. US-Meds.com, WIPO Case No. D2004-0809 (finding that the addition of the words “buy” and “online” does not remove a domain name from being confusingly similar); F. Hoffman La Roche AG v. Pinetree Development, Ltd., WIPO Case No. D2006-0049 (finding that the words “buy” and “online” are not sufficient to render a domain name dissimilar or to prevent consumer confusion).

Accordingly, in the present case, the Panel finds the addition of the term “servi“, that stands for the word “servicio” or “service”, to the ELECTROLUX trademark is not sufficient to distinguish the disputed domain name from the Complainant’s trademark. Therefore, the Panel considers that the addition of the term “servi” to the Complainant’s trademark to form the disputed domain name is insignificant and consequently the disputed domain name is confusingly similar to the Complainant’s trademark.

The Panel therefore concludes that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Complainant has made a prima facie showing that the Respondent has no rights to or legitimate interests in the disputed domain name. In this respect, the Complainant has established that the Respondent has no connection or affiliation with the Complainant and has not been licensed or otherwise permitted to use any of its trademarks or business names.

The Respondent has failed to rebut the assertions made by the Complainant in this administrative proceeding.

Neither does the use of the disputed domain name appear to the Panel to be in connection with a legitimate noncommercial or fair use, nor to be without the intent to misleadingly divert customers for commercial gain as the disputed domain name appears to be used for a commercial website which incorporates the Complainant’s trademarks and which does not provide any disclaimer or other clarifying text.

Accordingly, the Panel takes the view that the Respondent has no rights or legitimate interests in the disputed domain name and that the requirement of paragraph 4(a)(ii) of the Policy is also satisfied.

C. Registered and Used in Bad Faith

The Complainant has established that its trademarks have been used extensively and are known throughout the world and that the Complainant’s trademarks are famous and valuable. Accordingly, in the opinion of the Panel, it is very unlikely that the Respondent has registered the disputed domain name without being aware about the existence of the trademark ELECTROLUX bearing in mind the fact that the website to which resolves the disputed domain name reproduces the Complainant’s official logo.

Therefore, the registration of a domain name incorporating a well-known mark by a party that has no legitimate connection with the mark or relationship with the owner of the mark, generally constitutes bad faith registration and this is the approach of the Panel in this case (Gmbh v. Carlos Gil Belmonte, WIPO Case No. D2010-0456).

In respect to the use of the disputed domain name, the Complainant has proved to the satisfaction of the Panel, by means of the printouts of the website to which the disputed domain name resolves, that the Respondent is using the disputed domain name to intentionally attempt to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation or endorsement.

The above is clearly bad faith under paragraph 4(b)(iv) of the Policy and the Panel concludes that the Respondent’s registration and use of the domain name are 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 disputed domain name <servielectrolux.com> be transferred to the Complainant.

Manuel Moreno-Torres
Sole Panelist
Date: March 26, 2013