WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Aktiebolaget Electrolux v. Baran Kosef, Tasarim Dunyasi Bilgisayar Internet Hizmetleri
Case No. D2014-0939
1. The Parties
The Complainant is Aktiebolaget Electrolux of Stockholm, Sweden, represented by CSC Digital Brand Services AB, Sweden.
The Respondent is Baran Kosef, Tasarim Dunyasi Bilgisayar Internet Hizmetleri of Samsun, Turkey.
2. The Domain Name and Registrar
The disputed domain name <electroluxavm.com> is registered with Nics Telekomünikasyon Ticaret Ltd. Şti. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 4, 2014. On June 4, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 5, 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.
On June 20, 2014, the Center transmitted the language of the proceedings document to the parties in both English and Turkish. On June 23, 2014, 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 the Respondent of the Complaint, and the proceedings commenced on July 1, 2014. The Center informed the parties that, given the provided submissions and circumstances of this case, it had decided to: 1) accept the Complaint as filed in English; 2) accept a Response in either English or Turkish; 3) appoint a Panel familiar with both languages mentioned above, if available. In accordance with the Rules, paragraph 5(a), the due date for Response was July 21, 2014. The Response was filed with the Center on July 21, 2014.
The Center appointed Kaya Köklü as the sole panelist in this matter on August 12, 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 joint stock company founded in 1901 and registered as a Swedish company in 1919. It is a widely-known producer of household appliances and equipment, in particular in the cleaning and kitchen sector.
The Complainant has registered the trademark ELECTROLUX in several classes in more than 150 jurisdictions, including Turkey. The first trademarks were registered many decades before the registration of the disputed domain name.
The Complainant has further registered and operates the trademark ELECTROLUX as domain names under several generic Top-Level Domains ("gTLD") and country-code Top-Level Domains ("ccTLD") worldwide, e.g., <electrolux.com> and <electrolux.com.tr>.
According to the current record, the disputed domain name <electroluxavm.com> was created on February 14, 2014.
The Respondent is a web design and Internet service company from Samsun, Turkey.
As confirmed by the Respondent, the disputed domain name was connected to "www.ugurlucenter.com", a web shop of a Turkish customer of the Respondent named "Uğurlu Ev Aletleri Elektronik Eşya İletişim ve Bilgisayar Sistemleri Tic. San. Ltd. Şti." also located in Samsun, Turkey. In this web shop, mainly household and entertainment appliances and equipment are offered, including products from the Complainant's competitors on the Turkish market.
At the time of the decision, the disputed domain name does not resolve to any website.
As evidenced by the Complainant, the Respondent did not reply to several attempts of the Complainant to solve this dispute inter partes before initiating the present administrative proceedings.
5. Parties' Contentions
The Complainant requests the transfer of the disputed domain name.
The Complainant is of the opinion that the disputed domain name is confusingly similar to the Complainant's well-known ELECTROLUX trademark.
The Complainant argues that the only difference between the disputed domain name and the Complainant's trademark is that the disputed domain name additionally comprises the letters "avm", which is a common abbreviation for "alış veriş merkezi', meaning "shopping center" in Turkish. The Complainant is of the opinion that the addition of this abbreviation does not negate the confusing similarity with its ELECTROLUX trademark.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. In particular, the Complainant states that the Complainant has never granted a permission or license to the Respondent to use its ELECTROLUX trademark. The Complainant further alleges that the Respondent has never used and does not intend to use its trademarks in connection with a bona fide offering of goods and services.
Finally, it is argued that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant particularly believes that due to the notoriety of the ELECTROLUX trademark, the Respondent was or should have been aware of its trademarks when it registered the disputed domain name.
The Respondent replied on July 21, 2014 in Turkish. It requests the denial of the Complaint.
It asserts that the disputed domain name was registered on behalf of its commercial customer Uğurlu Ev Aletleri Elektronik Eşya İletişim ve Bilgisayar Sistemleri Tic. San. Ltd. Şti. from Samsun, Turkey.
It is argued that the disputed domain name was registered mainly for the purpose of getting higher rankings in Google searches for its customer. The Respondent states that also other domain names comprising famous trademarks like SONY, TEFALand VESTEL in combination with the abbreviation "avm" were registered by the Respondent on behalf of its customer and linked to the customer's website "www/ugurlucenter.com".
The Respondent believes that this is a legitimate use, in particular as it never intended to offer the disputed domain name for sale. The Respondent is further of the opinion that its customer is entitled to use the Complainant's ELECTROLUX trademark as its customer allegedly also sells some of the Complainant's genuine products. To support this allegation, the Respondent provided an invoice concerning the purchase of one ELECTROLUX washing machine.
6. Discussion and Findings
The Panel determines in accordance with the Complainant's request and the Rules, paragraph 11(a), that the language of these administrative proceedings shall be the English language. Although the language of the Registration Agreement is the Turkish language, the Panel finds that it would be inappropriate, given the circumstances of this case, to conduct the proceedings in Turkish and request a costly Turkish translation of the Complaint, while the Respondent failed to raise any objection to the Center's communication with regard to the language of the proceedings, although communicated in Turkish and English. The Panel believes that the Respondent will not be prejudiced by a Decision rendered in English language, as the Respondent was given the opportunity to file its Response in Turkish, what it did.
According to paragraph 14(a) and 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable and on the basis of the Complaint where no Response has been submitted.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) the disputed domain name is identical or confusingly similar to the trademark in which the Complainant has rights; and
(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.
Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complaint. Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.
However, concerning the uncontested information provided by the Complainant, the Panel may, where relevant, accept the provided reasonable factual allegations in the Complaint as true. Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
It is further noted that the Panel has taken note of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") and, where appropriate, will decide consistent with the WIPO Overview 2.0.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to the ELECTROLUX trademark of the Complainant.
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights in ELECTROLUX. As evidenced in the Complaint, the Complainant is the owner of a large number of word and figurative trademarks with regard to the ELECTROLUX mark in many jurisdictions worldwide, including Turkey, where the Respondent is located.
Although not identical, the disputed domain name fully incorporates the Complainant's ELECTROLUX trademark.
The disputed domain name differs from the Complainant's trademark only by the addition of the letters "avm", which is a common abbreviation of "alış veriş merkezi', meaning "shopping center" in Turkish language. In the Panel's view, the addition of this abbreviation does not negate the confusing similarity between the Complainant's trademark ELECTROLUX and the disputed domain name. The Panel finds that this addition is purely descriptive and does not create a new distinctiveness separate from the Complainant ELECTROLUX trademark. On the contrary, the full inclusion of the Complainant's trademark in combination with the Turkish abbreviation "avm" enhances the false impression that the disputed domain name is somehow officially related to the Complainant. It creates the impression of an online market place for ELECTROLUX products provided by the Complainant itself. The Panel concludes that the disputed domain name is likely to confuse Internet users in their believing that the disputed domain name is affiliated or endorsed by the Complainant or that the use of the disputed domain name is at least authorized by the Complainant.
In view of the above, the Panel is satisfied that the Complainant has met the requirements under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Panel further finds that the Respondent has not demonstrated any rights or legitimate interests in the disputed domain name.
While the burden of proof remains with the Complainant, the Panel recognizes that this would often result in the impossible task of proving a negative, in particular as the evidence needed to show the Respondent's lack of rights or legitimate interests is primarily within the knowledge of the Respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden of production of evidence shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name in order to meet the requirements of paragraph 4(a)(ii) of the Policy. Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.
The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to file any evidence or convincing argument to demonstrate a right or legitimate interest in the disputed domain name according to the Policy, paragraph 4(a)(ii) and 4(c).
With its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondent has no rights or legitimate interests to use the Complainant's ELECTROLUX trademark in the disputed domain name.
In its submission, the Respondent has confirmed that the purpose of the registration of the disputed domain name was to achieve higher rankings in search engines like Google. It obviously used the prominence of the Complainant's trademark with the purpose to mislead Internet users and to redirect them to the website of its customer.
In the Panel's view, this way of using the Complainant's trademark does not constitute a legitimate use, irrespective of the question whether the Respondent's customer also sells genuine products of the Complainant or not. The Panel notes here that other products competing to the Complainant's products were also sold on the website at the disputed domain name.
The Respondent has further failed to demonstrate any of the nonexclusive circumstances evidencing its rights or legitimate interests under the Policy, paragraph 4(c) or any other evidence of a right or legitimate interest in the disputed domain name.
Consequently, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Panel is further convinced that the Respondent has registered and is using the disputed domain name in bad faith.
The Panel is of the opinion that the Respondent deliberately attempted to create a likelihood of confusion among customers regarding the Complainant's ELECTROLUX trademark.
The Panel believes that the Respondent must have been well aware of the Complainant's trademark when it registered the disputed domain name on February 14, 2014. At the date of registration of the disputed domain name, the Complainant's ELECTROLUX trademark was already widely known worldwide, including in Turkey, for many decades.
Furthermore, it is undisputed that the Respondent registered and has used the disputed domain name to redirect Internet users, who are searching for the Complainant and its products, to the web shop of the Respondent's customer which also offers products of third parties. The Panel assesses this as another indication of the Respondent's bad faith registration and use of the disputed domain name.
The fact that the disputed domain name is currently inactive does not change the Panel's findings in this respect.
All in all, the Panel concludes that the disputed domain name was registered and is being used in bad faith and that the Complainant consequently has satisfied the third element of the Policy, namely, paragraph 4(a)(iii) of the Policy.
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 <electroluxavm.com> be transferred to the Complainant.
Date: August 26, 2014