WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
AB Electrolux v. Zhang Wei Bing, nan jing jia dian wei xiu zhong xin
Case No. D2016-1144
1. The Parties
The Complainant is AB Electrolux of Stockholm, Sweden, represented by Silka Law AB, Sweden.
The Respondent is Zhang Wei Bing, nan jing jia dian wei xiu zhong xin of Nanjing, Jiangsu, China.
2. The Domain Name and Registrar
The disputed domain name <electrolux-wh.com> ("Disputed Domain Name") is registered with Foshan YiDong Network Co., LTD (the "Registrar").
3. Procedural History
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 7, 2016. On June 8, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On June 14, 2016, 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. In response to a notification by the Center regarding the identity of the Registrar, the Complainant filed an amendment to the Complaint on June 14, 2016.
On June 14, 2016, the Center sent an email communication to the Parties in both Chinese and English regarding the language of the proceeding. On the same day, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding.
The Center verified that the Complaint together with the amendment to 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 in Chinese and English of the Complaint, and the proceedings commenced on June 20, 2016. In accordance with the Rules, paragraph 5, the due date for Response was July 10, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 11, 2016.
The Center appointed Kar Liang Soh as the sole panelist in this matter on July 15, 2016. 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 company founded in 1901. It is now a leading producer of appliances and equipment for kitchen and cleaning products among other things. In 2014, the Complainant was associated with sales of about SEK 112 billion and about 60,000 employees.
The Complainant uses the trademark ELECTROLUX (the "ELECTROLUX Mark") as its flagship brand for their appliances and equipment for kitchen and cleaning products. The ELECTROLUX Mark has been held to be a widely-known mark by the UDRP panel of Aktiebolaget Electrolux v. Mister Manager, WIPO Case No. D2008-0823. The Complainant has in place agreements with its licensees and distributors which prohibit the registration of domain names incorporating the ELECTROLUX Mark.
The Complainant's trademark registrations incorporating the ELECTROLUX Mark cover over 150 countries including:
March 17, 2004
January 7, 2014
International registration no. 836605 designates China, among other jurisdictions. It is a composite of the ELECTROLUX Mark and a logo (the "ELECTROLUX Logo"):
In addition, the Complainant has also registered the Chinese characters伊莱克斯 as a trademark in China, namely, Chinese trademark registration no. 11314983.
The Complainant is also the holder of multiple domain names incorporating the ELECTROLUX Mark, including <electrolux.com> and <electrolux.com.cn> both of which were registered in the 1990's, and operates websites under these domain names.
Very little information about the Respondent is available beyond the WhoIs information of the Disputed Domain Name. The Respondent appears to be an individual associated with a repair business in Nanjing, China.
The Disputed Domain Name was registered on May 13, 2013. On or before the date of the filing of the Complaint, the Disputed Domain Name resolved to a webpage in Chinese which featured the ELECTROLUX Logo, the ELECTROLUX Mark and 伊莱克斯 together prominently (in the manner as represented in International registration no. 836605) at the top left corner. The webpage advertises repair services for air conditioners under the ELECTROLUX Mark. One of the top menu items on the webpage purports to provide information on after-sales services. The section title "About Us" provides details of the Complainant immediately following a statement on the services of武汉伊莱克斯空调维修中心.
The Complainant sent a cease-and-desist letter to the Respondent on April 5, 2016, including a request for transfer of the Disputed Domain Name. A reminder was sent on April 21, 2016. The Complainant did not receive a response to that letter.
5. Parties' Contentions
The Complainant contends that:
(a) The Disputed Domain Name is confusingly similar to the ELECTROLUX Mark. It incorporates the ELECTROLUX Mark with the addition of the letters "wh" which refers to the Complainant's WH washing machine product;
(b) The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The prominent use of the ELECTROLUX Mark and ELECTROLUX Logo on the website resolved from the Disputed Domain Name strongly suggests a connection to the Complainant. The Complainant has never granted permission to register the Disputed Domain Name. The Disputed Domain Name and the website constituted a false and misleading impression that the Respondent was authorized, licensed or approved to provide information about the Complainant or the Complainant's products. The Respondent was aware of the ELECTROLUX Mark prior to acquiring the Disputed Domain Name and establishing the website; and
(c) The Disputed Domain Name was registered and is being used in bad faith. The Respondent is taking advantage of the ELECTROLUX Mark by intentionally attempting to attract visitors to the website resolved from the Disputed Domain Name by creating a likelihood of confusion with the ELECTROLUX Mark as to its source, sponsorship, affiliation or endorsement. The website does not disclaim any relationship with the Complainant. The Respondent has disregarded the Complainant's cease-and-desist letter.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
6.1 Language of Proceeding
The Registration Agreement was in Chinese. The Complainant has requested instead that English should be the language of the proceeding. Having considered the reasons provided and the circumstances of the case, the Panel hereby adopts English as the language of the proceeding. In making this decision, the Panel has taken into account the following factors:
(a) The Complaint has already been submitted in English;
(b) The Respondent having been notified of the Complaint in both English and Chinese did not file a Response and did not object to the Complainant's request for the language of the proceeding to be English; and
(c) No benefit to the efficacy of the proceeding may be achieve by requiring Chinese be maintained as the language of the proceeding. Instead, there will likely be unnecessary delay to the proceeding if so maintained.
To succeed in this proceeding, the Complainant must establish the following limbs of paragraph 4(a) of the Policy:
(a) The Disputed Domain Name is identical or confusingly similar to a trademark in which the Complainant has rights;
(b) The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(c) The Disputed Domain Name was registered and is being used in bad faith.
A. Identical or Confusingly Similar
In view of the trademark registrations for the ELECTROLUX Mark, the Complainant has shown that it has rights in the same. It is undisputable that the Disputed Domain Name adopts the ELECTROLUX Mark in its entirety. The Panel notes the Complainant's allegation that the letters "wh" added as a suffix to the ELECTROLUX Mark in the Disputed Domain Name refers to the Complainant's WH washing machine product. The Panel is not convinced that such a reference is apparent on the face. The Panel also notes that "wh" could be an abbreviation for the city of Wuhan in China. The website resolved from the Disputed Domain Name is associated with武汉伊莱克斯空调维修中心 (which can be readily translated to "Wuhan Electrolux Air Conditioner Repair Center"). Regardless, the Panel observes that the separation of the letters "wh" from the ELECTROLUX Mark by a hyphen draws particular attention to the ELECTOLUX Mark itself as a contiguous element. The presence of the ELECTROLUX Mark is thereby made even more prominent in the Disputed Domain Name. The addition of the letters "wh", regardless of what purpose the Respondent may have intended it to serve, is ineffective to distinguish the Disputed Domain Name from the ELECTROLUX Mark. It is the consensus opinion of past UDRP panels established under the Policy that the generic Top-Level Domain ("gTLD") ".com" plays little part in the comparison between a domain name and a trademark in the context of paragraph 4(a) of the Policy. In the circumstances, the Panel holds that the Disputed Domain Name is confusingly similar to the ELECTROLUX Mark and the first limb of paragraph 4(a) is established on the facts.
B. Rights or Legitimate Interests
There is nothing in the evidence to suggest that the Respondent is known by any name other than "Zhang Wei Bing, nan jing jia dian wei xiu zhong xin", let alone the Disputed Domain Name. The evidence shows that the Complainant has essentially asserted the absence of a relationship with the Respondent and any authorization, licence or approval of the Respondent's registration of the Disputed Domain Name and the Respondent's use of the ELECTROLUX Mark. The prominent use of the ELECTROLUX Logo and ELECTROLUX Mark on the website resolved from the Disputed Domain Name in the absence of such relationship conflicts with any uncorroborated assumption of bona fide use of the Disputed Domain Name. The Complainant has clearly established a prima facie case for the second limb of paragraph 4(a) of the Policy. In the absence of a Response, the prima facie case is upheld, and the Panel finds that the Respondent has no rights or legitimate interests in the Disputed Domain Name.
C. Registered and Used in Bad Faith
The prominent use of the ELECTROLUX Mark, ELECTROLUX Logo and the Chinese characters 伊莱克斯 on the website resolved from the Disputed Domain Name leaves no room for the Respondent to deny any knowledge of the Complainant's rights and interests. The Complainant has leveled very strong allegations against the Respondent which deserves a response from any reasonable person in the Respondent's shoes. The failure of the Respondent to respond to the cease-and-desist letter and this proceeding is very telling, suggesting that the Respondent has no answer to the Complaint.
The Panel draws an adverse inference that the Respondent is unable to controvert the factual allegations of the Complainant, in particular, that the Respondent is taking advantage of the ELECTROLUX Mark by intentionally attempting to attract visitors to the website resolved from the Disputed Domain Name by creating a likelihood of confusion with the ELECTROLUX Mark as to its source, sponsorship, affiliation or endorsement. The Panel's inference is corroborated by the "About Us" section of the website resolved from the Disputed Domain Name portraying the Complainant and "Wuhan Electrolux Air Conditioner Repair Center" in a way which suggests a relationship, when is not made out in the evidence. The offering of repair services for products under the ELECTROLUX Mark indicates that such offering is intended to attract Internet users for commercial gain.
The Panel is of the view that the circumstances of the present case fall squarely within the situation of bad faith registration and use envisaged by paragraph 4(b)(iv) of the Policy, which states:
"by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location."
Therefore, the Panel holds that the third limb of paragraph 4(a) of the Policy is also made out.
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 <electrolux-wh.com> be transferred to the Complainant.
Kar Liang Soh
Date: August 10, 2016