WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
AB Electrolux v. Firat Parto, Firat
Case No. D2015-1904
1. The Parties
The Complainant is AB Electrolux of Stockholm, Sweden, represented by BrandIT Legal AB, Sweden.
The Respondent is Firat Parto, Firat, of Istanbul, Turkey.
2. The Domain Name and Registrar
The disputed domain name <aegyetkiliservisi.com> (the "Domain Name") is registered with OnlineNic, Inc. d/b/a China-Channel.com (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 26, 2015. On October 26, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 27, 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.
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, and the proceedings commenced on November 6, 2015. In accordance with the Rules, paragraph 5, the due date for Response was November 26, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 27, 2015. On December 2, 2015, the Center re-notified the Complaint to the additional email address of the Respondent and formally invited the Respondent to submit its Response. The Respondent did not submit any communication.
The Center appointed Ellen B Shankman as the sole panelist in this matter on December 16, 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
The date of the Domain Name registration was confirmed by the Registrar to be January 17, 2011. The Complainant provided evidence of multiple trademark registrations for the mark AEG including, inter alia, International Trademark, No. 802025, (registered on December 18, 2002; that predates the date of the Domain Name registration)..
Further, the Complainant is also the registered proprietor of Turkish Trademark, No.125521, (registered on May 27, 1991 for AEG that also predates the date of the Domain Name registration) for a variety of related goods.
The Complainant operates its main website connected to its domain name <aeg.com> (registered on October 19, 1993) and a Turkish language website at the domain name <aeg.com.tr> (registered on August 7, 1997).
The Domain Name resolves to a Turkish language website offering repair services for the Complainant's AEG products. The Panel has conducted an independent search to determine that the Domain Name is currently active.
Because there is no formal response, the facts regarding the use and fame of the AEG mark, as well as the non-response from the Respondent to the Complainant's Cease & Desist letter, are taken from the Complaint and are generally accepted as true in the circumstances of this case.
5. Parties' Contentions
The Complainant 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 and floor care products. The Complainant claims, "After 90 years of innovations and acquisitions, Electrolux is now a global leader in home and professional appliances."
The Complainant further alleges that it owns also the brand AEG. The history of Allgemeine Elektricitäts- Gesellschaft (General Electric Company), better known around the world today as the brand AEG, extends back over 120 years and includes not only a ground-breaking heritage in electrical tools and engineering but a formative role in establishing the field of industrial design. Initially founded in 1883 as Deutsche Edison-Gesellschaft (DEG), the company took the name "AEG" in 1887. The Complainant claims, "Throughout Europe, AEG stands for high-quality appliances that combine top performance with excellent German design."
The Complainant also alleges it is the owner of the registered well-known trademark AEG as a word and figure mark in several classes in more than 150 countries all over the world, including in Turkey. The Complainant claims to have a strong business presence in Turkey through its business unit at the registered seat in Istanbul as well via its official licensing partners and service desks.
The Complainant sent a Cease & Desist letter on September 17, 2015 to the Respondent, to which no response was received, according to the Complainant.
The Respondent has used the Domain Name in an attempt to attract, for commercial gain, Internet users to the Respondent's websites by creating a likelihood of confusion with the Complainant's mark as to source, sponsorship, affiliation or endorsement.
To summarize the Complaint, the Complainant is the owner of trademark AEG. The Domain Name is confusingly similar to the trademark owned by the Complainant. The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Domain Name was registered and is being used in bad faith. Thus, the Respondent's registration and use of the Domain Name constitutes bad faith registration and use under the Policy, and the Complainant requests transfer of the Domain Name.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
6.1. Language of Proceedings
According to paragraph 11(a) of the Rules, the language of the administrative proceeding shall be the language of the Registration Agreement unless the Panel determines otherwise. Since the language of the Domain Name Registration Agreement is in English, the Panel finds that the language of the proceeding is English.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has satisfactorily proven that it has registered trademark rights for AEG, and that, even though not a prerequisite under the first element of the Policy, these rights precede the date of the Respondent's obtaining the Domain Name. Moreover, a Google search on the expression "AEG" provides several results, all of which are linked with the Complainant.
The Domain Name string contains the identical string for AEG mark in its entirety. The addition of what the Panel understands to be the generic Turkish word(s) "yetkiliservisi" (which can be translated as "authorized services" into English) does not materially change this finding. If anything, the additional generic terms added underscore an attempted connection by the Respondent to the trademark of the Complainant.
"The addition of merely generic, descriptive, or geographical wording to a trademark in a domain name would normally be insufficient in itself to avoid a finding of confusing similarity under the first element of the UDRP. Panels have usually found the incorporated trademark to constitute the dominant or principal component of the domain name." Paragraph 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0").
See also Ansell Healthcare Products Inc. v. Australian Therapeutics Supplies Pty, Ltd., WIPO Case No. D2001-0110, stating "The incorporation of a Complainant's well-known trademark in the registered Domain Name is considered sufficient to find the Domain Name confusingly similar to the Complainant's trademark."
Accordingly, the Panel finds that the Complainant has satisfied the first requirement that the Domain Name is identical or confusingly similar to the Complainant's registered trademark AEG, under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy in turn identifies three means through which a respondent may establish rights or legitimate interests in a domain name. Although the complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, UDRP panels have recognized that this could result in the often-impossible task of proving a negative, requiring information that is primarily if not exclusively within the knowledge of the respondent. Thus, the consensus view is that paragraph 4(c) of the Policy shifts the burden of production to the respondent to come forward with evidence of a right or legitimate interest in the disputed domain name, once the complainant has made a prima facie showing. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270.
The Complainant asserts that the Respondent has no rights or legitimate interests in respect of the Domain Name and that he is not related to or affiliated in any way with the Complainant's business.
Based on the available record, the Panel finds that the Complainant has established a prima facie case, which was not refuted.
Further, there is no evidence in the record that the repair services offered via the website at the Domain Name satisfy the Oki Data criteria (as applied to repair/maintenance services). See, Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903.
Therefore, the Panel finds that the Respondent lacks rights or legitimate interests in the Domain Name and that the Complainant has satisfied paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Given the distinctiveness of the Complainant's trademark and reputation, the Complainant claims that the Respondent has registered the Domain Name with full knowledge of the Complainant's trademark AEG and uses it for the purpose of misleading and diverting Internet traffic.
The Panel finds compelling factual and circumstantial evidence in the record that the Respondent likely knew of the Complainant's mark when he registered the Domain Name. The Panel notes that the website in relation with the Domain Name makes a clear reference to the Complainant by including the AEG logo on the main page, creating a likelihood of confusion.
It has been held in previous UDRP decisions that knowledge of a corresponding mark at the time of a domain name's registration suggests bad faith (LEGO Juris A/S v. Reiner Stotte, WIPO Case No. D2010-0494; Caixa D'Estalvis I Pensions de Barcelona ("La Caixa") v. Eric Adam, WIPO Case No. D2006-0464).
The Panel notes that in Aktiebolaget Electrolux v. Samet Bal and Firat Parto, WIPO Case No. D2011-2283, concerning the domain names <electroluxyetkiliservis.com> and <aegyetkiliservis.com> and where the same Respondent was involved and similar circumstances were established as in the this case, the panel found that the Respondent was using those domain names in bad faith.
Given the evidence of the Complainant's prior rights in the mark, the timing of the registration of the Domain Name, together with evidence of the Respondent's use of the AEG mark both in the Domain Name as well as on the Respondent's website, the Panel finds that the Complainant has satisfied the third requirement that the Respondent has registered and is using the Domain Name in bad faith, under 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 Domain Name <aegyetkiliservisi.com> be transferred to the Complainant.
Ellen B Shankman
Date: December 30, 2015