WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
AB Electrolux v. Yalcin Senturk
Case No. D2016-1834
1. The Parties
The Complainant is AB Electrolux of Stockholm, Sweden, represented by SILKA Law AB, Sweden.
The Respondent is Yalcin Senturk of Konya, Turkey.
2. The Domain Name and Registrar
The disputed domain name <konyazanussiservisi.com> is registered with DomainSite, Inc. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 9, 2016. On September 12, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 13, 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
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 October 3, 2016. In accordance with the Rules, paragraph 5, the due date for Response was October 23, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 24, 2016.
The Center appointed Kaya Köklü as the sole panelist in this matter on October 28, 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. The Center received an informal communication from the Respondent on October 28, 2016.
4. Factual Background
The Complainant is a Swedish joint stock company founded in 1901. It is a widely known producer of household appliances and equipment, in particular in the cleaning and kitchen sector. In 1984, it acquired the Italian appliance manufacturer Zanussi.
The Complainant and its affiliates own a large number of ZANUSSI trademark registrations in jurisdictions around the world, including Turkey. According to the available record, the first trademark registration providing protection in Turkey dates back to December 31, 1996.
The Complainant and its affiliates also own a number of domain names which incorporate the ZANUSSI trademark, such as <zanussi.com>, which was registered in 2005, and <zanussi.com.tr>, which was registered in 1997.
The Respondent appears to be an individual from Turkey.
The disputed domain name was registered on November 30, 2011. The screenshots provided by the Complainant show that the disputed domain name is used for offering various repair services for Zanussi products in Turkey. The provided screenshots also show that the Respondent is prominently using the official ZANUSSI logo to promote its services.
According to the available record, the Respondent did not reply to the cease-and-desist letter sent by the Complainant on April 5, 2016 asking for a voluntary transfer of the disputed domain name.
5. Parties' Contentions
The Complainant requests the transfer of the disputed domain name.
The Complainant claims that the disputed domain name is confusingly similar to its ZANUSSI trademark.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. It is rather argued that the disputed domain name falsely suggests that there is some official or authorized link with the Complainant for the purposes of repair services within Turkey.
Finally, it is argued that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant particularly argues that the Respondent was aware of the Complainant's ZANUSSI trademark, when registering the disputed domain name in 2011. Concerning bad faith use, the Complainant points out that the Respondent is using the disputed domain name to create a likelihood of confusion with the Complainant's trademark as to the Respondent's affiliation with the Complainant for commercial gain and that the Respondent did not publish a disclaimer describing the absence of a relationship between the Parties, while using the Complainant's ZANUSSI logo prominently on the website linked to the disputed domain name.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
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 a trademark or service mark 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 appropriate, accept the provided reasonable factual allegations in the Complaint as true. Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
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 Complainant has registered trademark rights in the mark ZANUSSI by virtue of a large number of trademark registrations, including trademark registrations in Turkey (International trademark number 950678 registered on September 3, 2007 and Turkish trademark number 86/096466 registered on December 31, 1996).
The Panel further finds that the disputed domain name is confusingly similar to the Complainant's registered ZANUSSI trademark, as it fully incorporates the Complainant's trademark. The mere addition of the descriptive Turkish term "servisi", which means "service" in English and the name of the Turkish city "Konya", does not serve to distinguish the disputed domain name from the Complainant's registered ZANUSSI trademark.
Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Panel further finds that the Respondent has rights or legitimate interests in the disputed domain name.
While the burden of proof on this element remains with the complainant, UDRP panels have recognized that this would result in the often impossible task of proving a negative, in particular as the evidence in this regard is often 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 make any convincing argument to demonstrate rights or legitimate interests in the disputed domain name according to the Policy, paragraph 4(a)(ii) and 4(c).
In its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondent has no rights or legitimate interests to use the Complainant's trademark ZANUSSI in a confusingly similar way within the disputed domain name.
In the absence of a Response by the Respondent, there is no indication in the current record that the Respondent is commonly known by the disputed domain name. Furthermore, the Respondent has failed to demonstrate any of the other non-exclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or other evidence of rights or legitimate interests in the disputed domain name.
On the contrary, the offered services under the disputed domain name indicate that the Respondent at least tries to gain commercial benefit by using a domain name which fully incorporates the Complainant's trademark ZANUSSI. In this regard, the Panel notes that the Respondent's website under the disputed domain name does not adequately disclose the relationship, or lack thereof, between the Respondent and the Complainant. Instead, the Respondent prominently uses the Complainant's ZANUSSI logo, thus creating the false impression that the Respondent is an official and authorised repair center for the Complainant's products.
All in all, there is no indication that the Respondent is making a bona fide offering of goods and services or legitimate noncommercial or fair use of the disputed domain name without the intent for commercial gain to misleadingly divert users or to tarnish the ZANUSSI trademark.
Hence, the Panel finds that the Complainant has also 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 used the disputed domain name in bad faith.
The Panel is aware of the reputation and recognition of the Complainant's trademark ZANUSSI. The Panel believes that the Respondent must have known of this trademark when registering the disputed domain name. This is likely as the disputed domain name has been registered well after the Complainant's ZANUSSI trademark registration in Turkey.
The Panel notes that the Respondent was already involved in a previous UDRP proceeding regarding a domain name comprising another trademark of the Complainant. In Aktiebolaget Electrolux v. Yalcin Senturk, WIPO Case No. D2012-0742, the panel decided to transfer that the disputed domain name to the complainant as it concluded that all three requirements for a transfer of a domain name were fulfilled.
It appears that the Respondent has registered the disputed domain name solely for the purpose of creating an association with the Complainant, in particular with its products and services. After having reviewed the provided screenshots of the website under the disputed domain name submitted by the Complainant, the Panel is convinced that the Respondent has intentionally registered the disputed domain name to offer services for ZANUSSI products by creating the impression that its offered repair service is made by or at least with the authorisation of the Complainant. Not only the disputed domain name itself, but also the design of the site under the disputed domain name give the impression that the Respondent intends to mislead for commercial gain Internet users who may search for official repair services for the Complainant's ZANUSSI branded products.
Further, the Panel finds that the Respondent's failure to respond to the Complainant's cease-and-desist letter and to the Complaint also supports the conclusion that it has registered and is using the disputed domain name in bad faith in order to mislead consumers.
The Panel therefore concludes that the disputed domain name was registered and is being used in bad faith and that the Complainant has also 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 <konyazanussiservisi.com> be transferred to the Complainant.
Date: November 10, 2016