WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Aktiebolaget Electrolux v. Yeliz Sanal
Case No. D2013-0413
1. The Parties
The Complainant is Aktiebolaget Electrolux of Stockholm, Sweden, represented by Melbourne IT Digital Brand Services, Sweden.
The Respondent is Yeliz Sanal of Izmir, Turkey.
2. The Domain Name and Registrar
The disputed domain name <electroluxservisi.org> (the “Domain Name”) is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 28, 2013. On February 28, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On March 1, 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.
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 March 15, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was April 4, 2013. The Respondent did not submit any response. Accordingly, the Center notified the parties about the commencement of panel appointment process on April 5, 2013.
The Center appointed Alan L. Limbury as the sole panelist in this matter on April 16, 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.
The Registrar has confirmed that the language of the registration agreement was English; therefore as per paragraph 11(a) of the Rules, the language of the proceeding is English.
4. Factual Background
The Complainant, founded in 1901, is a world leading producer of appliances such as refrigerators, dishwashers, washing machines, vacuum cleaners and cookers. It is the registered proprietor of numerous ELECTROLUX trademarks, including European Community Trade Mark No. 000077925, registered on September 16, 1998. The ELECTROLUX trademark is very well known worldwide.
The Domain Name was registered on September 12, 2012. The Turkish word “servirsi“, means “service”. The Domain Name resolves to a website offering the Complainant’s goods and those of its competitors. There is no disclaimer of any association with the Complainant. At the bottom of the website is the text “Tasarım Firmaetiket 2012 | Her Hakkı Saklıdır electrolux servisi”, which appears to mean “Design Firmaetiket 2012 | All rights reserved electrolux service”).
The Respondent failed to respond to two cease and desist letters.
5. Parties’ Contentions
The Complainant says the Domain Name is confusingly similar to its well-known ELECTROLUX mark and that the Respondent has no rights or legitimate interests in the Domain Name, which was registered and is being used in bad faith.
As to rights or legitimate interests, the Complainant says it has not found that the Respondent has any registered trademarks or trade names corresponding to the Domain Name. No licence or authorization of any kind has been given by the Complainant to the Respondent to use the trademark. The Respondent is not an authorized dealer of the Complainant’s products and has never had a business relationship with the Complainant. The Respondent is not using the Domain Name in connection with a bona fide offering of goods or services but is trying to sponge off the Complainant’s world famous trademark by conveying the false impression that the Respondent is an authorized service centre for the Complainant’s products. The copyright text creates the impression that the Respondent has rights in the name ELECTROLUX.
As to bad faith, the Complainant says the Domain Name is currently connected to a website that has no association with ELECTROLUX, with no disclaimer of endorsement or sponsorship by the Complainant. The images displayed are from one of the Complainant’s product ranges – air conditioners but are branded MITSUBISHI. Translated into English, the website says “Services provided by Senol Technical Service for 1 year parts and labor warranty”. The company behind the website is called Senol Teknik, to which Internet users are redirected when clicking on the tab “site giris”. It would seem that the Domain Name is the landing page to redirect customers to the Senol Teknik’s website “www.senolteknikservis.com”. Consequently, the Respondent is using the Domain Name intentionally to attempt to attract, for commercial gain, Internet users to its website and that of Senol Teknik, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of its website.
In summary, the Complainant says there is no doubt the Respondent was aware of the Complainant’s rights in the trademark ELECTROLUX and of its value at the point of registration. There is no connection between the Respondent and the Complainant. By using the Domain Name the Respondent is not making a legitimate noncommercial or fair use without intent for commercial gain but is misleadingly diverting consumers for its own commercial gain.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Under the Policy, paragraph 4(a), the Complainant must prove each of three elements of its case in order to obtain the requested relief:
(i) the 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 Domain Name; and
(iii) the Respondent registered and is using the Domain Name in bad faith.
A respondent is not obliged to participate in a proceeding under the Policy but if it fails to do so, asserted facts may be taken as true and reasonable inferences may be drawn from the information provided by the complainant. See Reuters Limited v. Global Net 2000, Inc, WIPO Case No. D2000-0441. See also Microsoft Corporation v. Freak Films Oy, WIPO Case No. D2003-0109; SSL INTERNATIONAL PLC v. MARK FREEMAN, WIPO Case No. D2000-1080 and ALTAVISTA COMPANY v. GRANDTOTAL FINANCES LIMITED et. al., WIPO Case No. D2000-0848.
A. Identical or Confusingly Similar
The Complainant has produced registration certificates demonstrating that it has rights in the ELECTROLUX mark. The Domain Name is not identical to that mark since it contains the additional word “servirsi”. The generic top-level domain (gTLD) “.org” is typically to be disregarded: Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525.
The test of confusing similarity under the Policy is confined to a comparison of the domain name and the trademark alone: Wal-Mart Stores, Inc. v. Traffic Yoon, WIPO Case No. D2006-0812. The content of a respondent’s website is generally disregarded for this element of the Policy (A&F Trademark, Inc. and Abercrombie & Fitch Stores, Inc. v. Justin Jorgenson, WIPO Case No. D2001-0900) unless that content might indicate an intention on the part of the respondent to confuse Internet users, in which case the conclusion that the domain name is confusingly similar to the trademark may more readily be drawn: RapidShare AG and Christian Schmid v. majeed randi, WIPO Case No. D2010-1089.
Here the addition to the Complainant’s trademark ELECTROLUX of the descriptive Turkish word “servisi“, meaning “service”, does nothing to detract from the distinctiveness of the Complainant’s mark. This alone justifies a finding of confusing similarity. Further, in this case the content of the Respondent’s website appears designed to reinforce the Internet user’s impression that the Domain Name belongs to the Complainant.
The Panel finds the Domain Name to be confusingly similar to the Complainant’s ELECTROLUX mark. The Complainant has established the first element of the Policy.
B. Rights or Legitimate Interests
The ELECTROLUX mark is distinctive and very well known. The Complainant’s assertions are sufficient to constitute a prima facie showing of the absence of rights or legitimate interests in the Domain Name on the part of the Respondent. The burden of production therefore shifts to the Respondent to show by concrete evidence that it does have rights or legitimate interests in that domain name: Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624 and the cases there cited. The Respondent has made no attempt to do so.
As mentioned, the content of the Respondent’s website appears designed to reinforce the Internet user’s impression that the Domain Name belongs to the Complainant. The website is offering the Complainant’s goods and of its competitors, and as stated above there is no disclaimer to disclose the relationship between the registrant and the trademark holder. “Use which intentionally trades on the fame of another cannot constitute a “bona fide” offering of goods or services”: Madonna Ciccone, p/k/a Madonna v. Dan Parisi and “Madonna.com”, WIPO Case No. D2000-0847.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the Domain Name. The Complainant has established this element.
C. Registered and Used in Bad Faith
The Panel accepts the Complainant’s submission that, by using the Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website. Under paragraph 4(b)(iv) of the Policy this shall be evidence of both the registration and use of the Domain Name in bad faith for purposes of paragraph 4(a)(iii) of the Policy.
The Complainant has established this element.
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 <electroluxservisi.org> be transferred to the Complainant.
Alan L. Limbury
Date: April 28, 2013