WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
AB Electrolux v. Ugur
Case No. D2015-1021
1. The Parties
1.1 Complainant is AB Electrolux of Stockholm, Sweden, represented by BrandIT Legal AB, Sweden.
1.2 Respondent is Ugur of Istanbul, Turkey.
2. The Domain Name and Registrar
2.1 The disputed domain name <turkiye-electrolux.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the "Registrar").
3. Procedural History
3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 17, 2015. On June 17, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 17, 2015, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.
3.2 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").
3.3 In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on June 22, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was July 12, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on July 14, 2015.
3.4 The Center appointed David Perkins as the sole panelist in this matter on July 28, 2015. 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
4.A.1 Complainant was founded in Sweden on January 19, 1901. Having started its business with the sale of a vacuum cleaner, Complainant is now one of the world's leading producers of home and professional appliances. It sells over 50 million products per year in over 150 countries worldwide. It has some 60,000 employees. Sales in 2014 amounted to SEK112 billion, which translates to approximately USD 13 billion or GBP 8.6 billion.
Complainant's ELECTROLUX Trade Mark
4.A.2 The ELECTROLUX brand is Complainant's flagship brand for kitchen and cleaning appliances. It is the proprietor of the ELECTROLUX trade mark in several classes in more than 150 countries worldwide.
4.A.3 Exhibited to the Complaint are particulars of the following ELECTROLUX trade mark registrations of which Complainant is the proprietor:
Classes of Goods & Services
Application & Registration dates
3: 7: 9: 11: 16
20-21: 35 and 37
Filed April 1, 1996: Registered September 16, 1998.
3: 7-9: 11: 16
21: 25: 35: 37 and 39
Filed April 17, 2004.
4.A.4 Respondent's establishment is in Turkey. Complainant's trade mark registration IR 836,605, which includes Turkey, was published in Turkey under publication number 2005/14 Gaz dated May 12, 2005.
Complainant's ELECTROLUX domain names
4.A.5 Complainant is the registrant of a number of domain names under both generic and country code Top-Level Domains ("TLDs") incorporating the ELECTROLUX mark, including <electrolux.com> which was created on April 30,1996 and also <electrolux.com.tr>, both of which resolve to Complainant's Electrolux website.
Complainant's Agreement with its Licensees/Distributors
4.A.6 Exhibited to the Complaint are extracts from Complainant's Standard Form Agreement with its authorised partners, which provides that such partners shall not use domain names incorporating the ELECROLUX trade mark without authorisation from Complainant, nor shall they register a domain name containing that trade mark. Further, that all rights in any such domain name shall be the "exclusive and absolute property" of Complainant. Complaint states that Respondent is not an authorised Electrolux partner.
Communications between the Parties
4.A.7 The Complaint exhibits a "Cease & Desist" letter sent to Respondent dated May 11, 2015 and a reminder email sent to Respondent on May 18, 2015. No reply nor acknowledgement to either such communication was received.
4.B.1 In the absence of a Response to the Complaint, all that is known about Respondent is what is stated in the Complaint and the Exhibits to the Complaint.
4.B.2 The disputed domain name was created on January 29, 2015.
4.B.3 The disputed domain name resolves to Respondent's website which apparently offers repairs and services of ELECTROLUX products in Turkey. That website prominently features what Complainant describes as "a homemade" ELECTROLUX logo coloured blue.
4.B.4 The Complaint exhibits WhoIs print outs of other domain names registered by Respondent which include other well known brands, namely <turkiye-miele.com> created on January 29, 2015; <miele‑turkiye.com> created on January 11, 2015; <siemens-turkiye.com> created on March 13, 2015; and <turkiye-bosch.com> created on January 29, 2015.
5. Parties' Contentions
Identical or confusingly similar
5.A.1 Complainant's case is that, since the disputed domain incorporates its well known ELECTROLUX trade mark, it is confusingly similar to that mark. Complainant says that neither the addition of the country identifier "turkiye", nor the gTLD ".com" render the disputed domain name dissimilar to the ELECTROLUX trade mark. Complainant cites cases decided under the Policy in support of those contentions.
Rights or Legitimate Interests
5.A.2 Complainant's case is that Respondent cannot demonstrate any of the circumstances set out in paragraph 4(c) of the Policy evidencing rights to or legitimate interests in the disputed domain name. Specifically, Respondent has never been authorised to use the ELECTROLUX trade mark in the disputed domain name.
5.A.3 Further, even if Respondent was an Electrolux licensee/distributor, which it is not, it would still have no entitlement to register a domain name incorporating the ELECTROLUX trade mark. In this respect, Complainant refers to the terms of its Agreements with partners summarised in paragraph 4.A.6 above.
5.A.4 Still further, Respondent's use of the ELECTROLUX trade mark does not qualify as legitimate under the test prescribed in the Oki Data case (Oki Data Americas, Inc.,v. ASD,Inc. WIPO Case No. D2001-0903). The Oki Data conditions are summarised in paragraph 2.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0").
5.A.5 Complainant's case is that, in the circumstances, Respondent's use of the disputed domain name is not a bona fide use. Nor, Complainant says, is it a legitimate noncommercial or fair use under paragraph 4(c)(iii) of the Policy. Use of the disputed domain name and of the ELECTROLUX trade mark on the website to which that domain name resolves will, Complainant says, inevitably cause Internet users to believe that Respondent is the Complainant or is in some way affiliated with Complainant.
Registered and Used in Bad Faith
5.A.6 Complainant contends that the circumstances set out in paragraphs 4(b)(ii) to (iv) apply in this case. First, given the well known status of the ELECTROLUX trade mark, it is inconceivable - Complainant says - that Respondent could have been unaware of Complainant's rights in that mark when registering the disputed domain name. Hence, Complainant says, the disputed domain name was registered in bad faith.
5.A.7 Other indicia of Respondent's bad faith are, Complainant says, it's failure to respond to the Cease & Desist letter (referred to in paragraph 4.A.7 above) and its registration of domain names incorporating the other "well known brands" referred to in paragraph 4.B.4 above.
5.A.8 Complainant points to there being no disclaimer on Respondent's website as further evidence of its intention to cause Internet users to believe that its repair centre website is affiliated with Complainant. In this respect, Complainant cites the decision in Aktiebolaget Electrolux v. Hoang Dinh Cuong, WIPO Case No. D2015-0351, where use of the disputed domain name <suamaygiatelectrolux24h.com> for a website offering repair services for ELECTROLUX products was held not to give rise to a right or legitimate interest in that domain name. Complainant also cites the decision in Aktiebolget Electrolux v. electroluxmedellin.co, Domain Discrete Privacy Service/Luis Rincon, WIPO Case No. D2014-0487, where it was held that use of the disputed domain name would lead to customer confusion in the sense that users would believe that the Respondent in that case was "...in some way associated with or authorised by the Complainant."
As noted above, no Response has been filed.
6. Discussion and Findings
6.1 The Policy paragraph 4(a) provides that Complainant must prove each of the following in order to succeed in an administrative proceeding
(i) that the disputed domain name is identical or confusingly similar to a trade mark or service mark in which Complainant has rights; and
(ii) that Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
6.2 The Policy paragraph 4(c) sets out circumstances which, in particular but without limitation, if found by the Panel to be proved shall demonstrate Respondent's rights or legitimate interests in the disputed domain name.
6.3 The Policy paragraph 4(b) sets out circumstances which, again in particular but without limitation, if found by the Panel to be present shall be evidence of the registration and use of a domain name in bad faith.
6.4 As stated, the circumstances set out in paragraph 4(b) and 4(c) of the Policy are not exclusionary. They are without limitation. That is, the Policy expressly recognizes that other circumstances can be evidence relevant the requirements of paragraphs 4(a)(ii) and (iii) of the Policy.
Identical or Confusingly Similar
6.5 First, Complainant clearly has rights in its ELECTROLUX trade mark, which is a very well known mark.
6.6 Further, since the disputed domain name contains Complainant's ELECTROLUX trade mark in its entirety and as this mark is the dominant feature of the disputed domain name, consistent with the case law of the Policy, the Panel finds that the disputed domain name is confusingly similar to that mark.
6.7 Accordingly, the Complaint meets the requirements of paragraph 4(a)(i) of the Policy.
Rights or Legitimate Interests
6.8 Complainant's case summarised in paragraphs 5.A.2 to 5.A.5 above is well made out. It is clear that Respondent could not demonstrate that any of the circumstances listed in paragraph 4(c) of the Policy apply.
6.9 Additionally, the decision cited by Complainant under paragraph 4(a)(iii) - namely, Aktiebolaget Electrolux v. Hoang Dinh Cuong, supra, referred to in paragraph 5.A.8 above - is very much in point in relation to this requirement of the Policy.
6.10 Still further, insofar as the Oki Data conditions are applicable, the Panel agrees that Respondent cannot meet a number of those conditions. Namely, the failure to publish a disclaimer on the website to which the disputed domain name resolves, that Respondent is depriving Complainant from reflecting its own ELECTROLUX trade mark in the disputed domain name and that Respondent is presenting itself as in some way affiliated to or authorised by Complainant.
6.11 Accordingly, the Complaint also succeeds under paragraph 4(a)(ii) of the Policy.
Registered and Used in Bad Faith
6.12 The case summarised in paragraphs 5.A.6 to 5.A.8 is, again, well made out and does not require repetition here. Additionally, in this respect, Aktiebolget Electrolux v. electroluxmedellin.co, Domain Discrete Privacy Service/Luis Rincon, supra, referred to in paragraph 5.A.8 above is particularly apposite to the facts in this dispute. Accordingly, the Complaint meets the requirement of paragraph 4(a)(iii) of the Policy.
For all 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 <turkiye-electrolux.com> be transferred to the Complainant.
Date: July 31, 2015