WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Aktiebolaget Electrolux v. Erhan Kamak
Case No. D2014-1790
1. The Parties
The Complainant is Aktiebolaget Electrolux of Stockholm, Sweden, represented by CSC Digital Brand Services AB, Sweden.
The Respondent is Erhan Kamak of Samsun, Turkey.
2. The Domain Names and Registrar
The disputed domain names <bayi-electrolux.com>, <b2b-electrolux.com> and <store-electrolux.com> are registered with Bizcn.com, Inc. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 14, 2014. On October 14, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On October 15, 2014, 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 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 October 24, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was November 13, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 14, 2014.
The Center appointed Theda König Horowicz as the sole panelist in this matter on November 24, 2014. 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 is a Swedish company which produces appliances and equipment for kitchen and cleaning. The Complainant trades worldwide under the brand ELECTROLUX. The Complainant's products include refrigerators, dishwashers, washing machines, vacuum cleaners and cookers sold under several trademarks including ELECTROLUX.
The Complainant has been the owner since many years of the ELECTROLUX trademark in several jurisdictions, including in the European Union as a Community Trademark, registered on September 16, 1998 and in Turkey.
The Complainant also owns many domain names which include the ELECTROLUX trademark, some of them being linked to the Complainant's official website, such as <electrolux.com.tr>, which promotes the Complainant's products. The registration agreement for each of the disputed domain names is English.
The Respondent registered the disputed domain names <bayi-electrolux.com>, <b2b-electrolux.com> and <store-electrolux.com> on March 14, 2014.
The domain names <b2b-electrolux.com> and <store-electrolux.com> are redirected to the domain name <bayi-electrolux.com> under which the Respondent operates a website selling products bearing the ELECTROLUX brand.
The website at <bayi-electrolux.com> prominently uses the trademark and logo of the Complainant and also has a layout which is similar to the one used by the Complainant on its official website.
The Complainant sent a cease and desist letter to the Respondent, via email, on June 9, 2014 asking for the transfer of the disputed domain names. No response was given.
5. Parties' Contentions
A. Complainant
The Complainant claims to have rights over the trademark ELECTROLUX, including in Turkey, country of the Respondent. The Complainant alleges in this regard that the disputed domain names are confusingly similar as they include the well-known name ELECTROLUX. The addition of the prefixes "b2b", "bayi" and "store" in each of the disputed domain names does not have any impact in this regard as these prefixes are descriptive. The Complainant indicates notably that "bayi" is the Turkish word for "dealer". Consequently, all three disputed domain names wrongly give the impression that these are connected to the Complainant's business.
The Complainant mentions that it never gave the Respondent the authorization to use its trademark ELECTROLUX and that it never entered into a business relationship of any kind with the latter. The Respondent thus registered the disputed domain names without any permission from the Complainant. The Complainant alleges that the Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services, in particular because:
- the Respondent displays on the website "www.bayi-electrolux.com" the ELECTROLUX logo and therefore gives the impression to be authorized to do so which is not the case;
- the Respondent misleads Internet users to a commercial website creating the impression of association with the Complainant;
- the Respondent does not include on its website a disclaimer mentioning that he is not associated with the Complainant.
Finally, the Complainant considers that the disputed domain names were registered and are used in bad faith. The Complainant indicates that the trademark ELECTROLUX is famous and well-known which means that the Respondent could not have ignored that it is a protected trademark when registering the disputed domain names. Furthermore the disputed domain names are used to attract Internet users by including the trademark ELECTROLUX, thus diverting them away from Complainant's official website in Turkey. Such use is made for commercial gain and may generate unjustified revenues.
B. Respondent
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
According to Paragraph 4a of the Policy, the complainant must prove that:
(i) The domain name is identical or confusingly similar to a trademark in which the complainant has rights; and
(ii) The respondent has no rights or legitimate interests in respect of the domain name; and
(iii) The domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant has shown to have rights in the trademark ELECTROLUX in several countries1.
As mentioned by the Complainant, the name "bayi" included in the disputed domain name which is connected to the Respondent's website means "dealer" in the Turkish language. The denominations "dealer" as well as "store" and "b2b" are obviously descriptive and do therefore have no impact in the analysis of confusing similarity.
As all three disputed domain names contain the trademark ELECTROLUX of the Complainant in its entirety, the Panel finds that they are confusingly similar to the trademark of the Complainant.
The first condition of the Policy is therefore fulfilled.
B. Rights or Legitimate Interests
The Complainant has made a prima facie case showing that the Respondent has no rights to or legitimate interests in the disputed domain names.
Indeed, the Complainant very clearly stated that it never authorized the Respondent to use its well-known trademark ELECTROLUX by any means whatsoever.
The burden of proof thus shifts to the Respondent to show by concrete evidence that he does have rights or legitimate interests in the disputed domain name (See Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o. WIPO Case No. D2004-0110 ).
In the absence of any submission filed by the Respondent, the Panel notes the following:
The fact that the Respondent uses the disputed domain names to sell Electrolux products on "www.bayi-electrolux.com" does not suffice to consider that he is entitled to use the disputed domain names all of which contain the Complainant's well-known brand.
There is no evidence to suggest that the Respondent has been commonly known by the disputed domain names and that the Respondent has made fair use of these
Furthermore, the Respondent is not an authorized dealer. He nevertheless displays on the website "www.bayi-electrolux.com" the trademark and logo of the Complainant and thus wrongly gives the impression of an association with the Complainant.
The Respondent who obviously knows the well-known trademark of the Complainant as he is selling products of the same brand on "www.bayi-electrolux.com" did not provide any proof in the present proceedings that his website contains a disclaimer showing that he is not affiliated with the Complainant.
The prominent use of the Complainant's trademark along with the ELECTROLUX logo and the layout used for the website "www.bayi-electrolux.com" give the strong impression to the Internet users that such affiliation exists.
In the circumstances, such conduct cannot constitute a bona fide offering of goods or services. The Respondent did obviously intentionally adopt the disputed domain names and the website so as to benefit from the goodwill of the ELECTROLUX trademark for commercial gain (See Microsoft Corporation v. Microsof.com aka Tarek Ahmed, WIPO Case No. D2000-0548 and Philip Morris Incorporated v. Alex Tsypkin, WIPO Case No. D2002-0946).
The Panel therefore finds that the Respondent has no rights or legitimate interests in the disputed domain names.
The Complainant has thus established this second condition of the Policy.
C. Registered and Used in Bad Faith
It follows from what has been said about the lack of rights or legitimate interests (section B. above) that the Respondent did register the disputed domain names in bad faith and used these to attempt to attract for commercial gain, Internets users to his website by creating a likelihood of confusion with the Complainant's well-known ELECTROLUX trademark as to the affiliation of his website.
Consequently, the Panel finds that the third condition of the Policy is also fulfilled.
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 names <bayi-electrolux.com>, <b2b-electrolux.com> and <store-electrolux.com> be transferred to the Complainant.
Theda König Horowicz
Sole Panelist
Date: December 8, 2014
1 Even if the Complainant did not produce a copy of the Turkish registration for the trademark, the website of the Turkish Trademark Office shows that several applications and/or registrations including ELECTROLUX exist in the name of the Complainant in this country.