WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
AB Electrolux v. Gokhan Cavdar
Case No. D2015-1506
1. The Parties
The Complainant is AB Electrolux of Stockholm, Sweden, represented by BrandIT Legal AB, Sweden.
The Respondent is Gokhan Cavdar of Bursa, Turkey.
2. The Domain Name and Registrar
The disputed domain name <bursaelectrolux.com> is registered with FBS Inc. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 24, 2015. On August 25, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 26, 2015, 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. Further to the Center's communication regarding the language of proceedings, the Complainant requested English to be the language of proceedings on August 28, 2015.
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 and 4, the Center formally notified the Respondent of the Complaint in both Turkish and English, and the proceedings commenced on September 4, 2015. In accordance with the Rules, paragraph 5, the due date for Response was September 24, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on September 25, 2015.
The Center appointed Dilek Ustun Ekdial as the sole panelist in this matter on October 2, 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
AB Electrolux is a Swedish joint stock company founded in 1901 and one of the world's leading producers of appliances and equipment for kitchen and cleaning products and floor care products.
Having started out with the sale of a single vacuum cleaner, after 90 years of innovations and acquisitions, Electrolux is now a global leader in home and professional appliances.
The ELECTROLUX trademark is the Complainant's flagship brand for kitchen and cleaning appliances for both consumers and professional users. In 2014, the Complainant had sales of SEK 112 billion and about 60,000 employees.
The Complainant is the owner of the registered well-known trademark ELECTROLUX as a word and figure mark in several classes in more than 150 countries all over the world including in Turkey.
These trademark registrations predate the registration of the disputed domain name. Due to extensive use, advertising, and revenue associated with its trademarks worldwide, the Complainant enjoys a high degree of renown around the world, including in Turkey where the Respondent is domiciled.
The official website for the brand Electrolux for Turkey is "www.electrolux.com.tr".
The disputed domain name <bursaelectrolux.com> was created on April 12, 2015 (as indicated by the Registrar and the public WhoIs record).
5. Parties' Contentions
According to the Complainant, the disputed domain name <bursaelectrolux.com>, which was registered on April 12, 2015, directly and entirely incorporates the Complainant's well-known, registered trademark ELECTROLUX. It has been established in previous UDRP decisions that ELECTROLUX is considered a well-known trademark, for example Aktiebolaget Electrolux v. Mister Manager, WIPO Case No. D2008-0823, regarding the domain name <electrolux-appliance.com>; AB Electrolux v. OOO "Innovative technology", WIPO Case No. D2015-1006 regarding the domain name <electrolux.center> as well the AB Electrolux v. Ugur, WIPO Case No. D2015-1021, regarding the domain name <turkiye-electrolux.com>.
The addition of the generic Top-Level Domain (gTLD) ".com" does not add any distinctiveness to the disputed domain name.
Further, the disputed domain name contains only the geographical reference "bursa" (Bursa is a city in Turkey where the Respondent is also located.). This geographical reference exaggerates the impression that the Respondent is somehow affiliated with the Complainant, and the Respondent is somehow doing business in Turkey using the Complainant's brand name.
The Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant has not found that the Respondent has any registered trademarks or trade names corresponding to the disputed domain name. It is also clear that no license or authorization of any other kind has been given by the Complainant to the Respondent to use the trademark.
The Complainant states that the Respondent is today not using the disputed domain name in connection with a bona fide offering of goods or services. The Respondent is using the disputed domain name to attract Internet users to its website where the Respondent states that they are "ELECTROLUX Teknik Servis" / "ELECTROLUX Klima Servisi" moreover they serve customers in Bursa. A common misunderstanding with authorized or non-authorized repair centers is that they are also of the impression that they can freely register domain names incorporating the trademark name of the products they are offering services on. The Complainant has a clear agreement with all its authorized partners that this is strictly forbidden. The agreements that are signed between the Complainant and its licensees / distributors clearly stipulate that they are not entitled to register domain names incorporating the Complainant's trademark.
The Complainant also adds that the Respondent does not qualify under the criteria laid down in the Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903 and described in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0").
It is inconceivable that the Respondent was not aware of the Complainant's trademark rights at the time of the registration of the disputed domain name.
The Complainant first tried to contact the Respondent on May 27, 2015, through sending a cease and desist letter. No response was received.
The Respondent should be considered to have registered and to be using the disputed domain name in bad faith.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
6. 1. Language of the Proceeding
Although the language of the Registration Agreement is Turkish, the Panel determines in accordance with the Rules, paragraph 11(a) that the language of these administrative proceedings shall be the English language. The Panel finds that it would be inappropriate to conduct the proceedings in the Turkish language and request a Turkish translation of the Complaint while the Respondent has failed to raise any objection or even to respond to the Complaint and to the Center's email communication with regard to the language of the proceedings, despite being communicated in Turkish and in English.
6. 2. Substantive Issues
Paragraph 15(a) of the Rules requires the Panel to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
Under paragraph 4(a) of the Policy, the Complainant bears the burden of showing:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) that the 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.
A. Identical or Confusingly Similar
The Complainant has registered the trademark ELECTROLUX as a word and figure mark in several classes in more than 150 countries all over the world. The trademark ELECTROLUX was registered long before the registration of the disputed domain name. The Complainant has also registered the trademark ELECTROLUX as a domain name under a number of gTLDs and country-code Top-Level Domains (ccTLDs) worldwide, among these <electrolux.com.tr> (registered by Electrolux Turkey) and <electrolux.com>.
The Panel concurs with the opinion of several prior UDRP panels which have held that, when a domain name wholly incorporates a complainant's registered mark that may be sufficient to establish confusing similarity for purposes of the Policy. See, e.g., Kabushiki Kaisha Hitachi Seisakusho (d/b/a Hitachi Ltd) v. Arthur Wrangle, WIPO Case No. D2005-1105; Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903; Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525; EAuto, L.L.C. v. Triple S. Auto Parts d/b/a Kung Fu Yea Enterprises, Inc., WIPO Case No. D2000-0047; Bayerische Motoren Werke AG v. bmwcar.com, WIPO Case No. D2002-0615.
In this Panel's view, in line with prior UDRP panels, the addition of a geographic term to a registered mark, in this case of "bursa" is not sufficient to overcome a finding of confusing similarity between the disputed domain name and the Complainant's mark. See WIPO Overview 2.0, paragraph 1.9.
Finally, the Respondent has brought no argument to contend that the disputed domain name is not identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
Therefore, the Panel finds that the requirement of paragraph 4(a)(i) of the Policy is met.
B. Rights or Legitimate Interests
The Panel finds that the Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests, and the Respondent has failed to demonstrate any rights or legitimate interests.
The Respondent has not provided any evidence of the type specified in paragraph 4(c) of the Policy, or any other circumstances giving rise to a right or legitimate interest in the disputed domain name. It is clear for this Panel that the Respondent has not demonstrated any bona fide offering of goods and services by its using the disputed domain name. Nor has the Respondent shown that it has been commonly known by the disputed domain name. The Complainant showed, inter alia, that the Respondent has neither a license nor any other permission to use the disputed domain name and that use of the disputed domain name does not fall under the Oki Data requirements, as also explained below. The Panel finds that given the use of the disputed domain name, when the Respondent registered the disputed domain name it knew that ELECTROLUX was the trademark of the Complainant, and that it registered the disputed domain name because it would be recognized as such, in order to misleadingly divert consumers for commercial gain.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a list of indicative circumstances that suggest bad faith registration and use, however, such list is not exhaustive and a finding of bad faith depends on the circumstances of each case. Based on the circumstances, in the Panel's view, it is reasonable to infer that when the Respondent registered the disputed domain name, it likely knew that the disputed domain name incorporated the trademark of the Complainant and registered it in order to take advantage of the strength of the trademark. The Panel, in accordance with previous decisions issued under the Policy, is of the opinion that this knowledge may be considered, in appropriate cases, also an indication of bad faith (see Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000-0226).
The disputed domain name is currently connected to a Turkish website offering services for Electrolux products in Turkey. The website to which the disputed domain name resolves does not accurately disclose their relationship with the trademark owner, i.e. the Complainant. The disclaimer included at the bottom of the website, translated as "The trademark is registered and belongs to the concerned company. We serve as private technical service, independent of trademark and logos", is not, in the Panel's opinion, prominently displayed. Consequently, the Respondent is using the dispute 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 mark as to the source, sponsorship, affiliation or endorsement of the website.
In view of the above, the Panel finds that the Respondent has registered and is using the disputed domain name in bad faith, in accordance with 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 <bursaelectrolux.com> be transferred to the Complainant.
Dilek Ustun Ekdial
Date: October 20, 2015