WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
AB Electrolux v. Ahmet Cem Cetin, Merkez Servis
Case No. D2017-0331
1. The Parties
The Complainant is AB Electrolux of Stockholm, Sweden, represented by SILKA Law AB, Sweden.
The Respondent is Ahmet Cem Cetin, Merkez Servis of Ankara, Turkey.
2. The Domain Name and Registrar
The disputed domain name <ankaraaegservisi.com> is registered with GoDaddy.com, LLC (the "Registrar").
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the "Center") on February 20, 2017. On February 20, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 20, 2017, 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 March 2, 2017. In accordance with the Rules, paragraph 5, the due date for Response was March 22, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 23, 2017.
The Center appointed Uğur G. Yalçıner as the sole panelist in this matter on March 29, 2017. 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 joint stock company with its legal domicile in Sweden established in 1901 and is a producer of appliances and equipment for kitchen as well as cleaning and floor care products. The Complainant is the owner of numerous brands including AEG, AEG-Electrolux, and Electrolux.
The Complainant relies on the following trademarks:
- AEG International trademark No. 802025 registered on December 18, 2002, also protected in Turkey, and claiming protection for goods in international classes 7, 8, 9, 10, 11 and 17.
- AEG PERFECT IN FORM AND FUNCTION International trademark No. 802994B registered on January 16, 2003, claiming protection for goods and services in classes 7, 9, 11 and 37.
- AEG International trademark No. 149827A registered on October 26, 1950, claiming protection for goods in classes 6, 7, 9, 10, 11, 12, 14, 16, 17, 19 and 21.
The disputed domain name <ankaraaegservisi.com> was created on April 13, 2016.
The disputed domain name presently directs users to a blank page displaying the following message: "This account has been suspended. Either the domain has been overused, or the reseller ran out of resources". It formerly resolved to a website in the Turkish language appearing to offer repair services for the Complainant's products.
The Complainant requests that the disputed domain name be transferred to the Complainant.
5. Parties' Contentions
According to the Complainant;
- The disputed domain name was registered on April 13, 2016 and entirely incorporates the Complainant's registered trademark AEG, the disputed domain name also contains the generic and descriptive Turkish word "servisi" (which can be translated to English as "service") as well as the Turkish city name "Ankara", further the addition of generic or geographic terms does not differentiate the disputed domain name from the registered trademark.
- The Respondent is using the disputed domain name to attract Internet users to its website where it offers repair and maintenance services for the Complainant's products. A common misunderstanding with authorized or non-authorized repair centers is that they are also of the impression that they can freely register a domain name incorporating the trademark of the products they are offering services for.
- The Complainant has an agreement with all its authorized partners and they are not entitled to register domain names incorporating the Complainant's trademark. The Complainant has not found that the Respondent has any registered trademarks or trade names corresponding to the disputed domain name and no license or authorization of any other kind has been given by the Complainant to the Respondent to use the trademark.
- The Respondent does not qualify as having rights or legitimate interests in the disputed domain name under the criteria laid down in 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"), paragraph 2.3.
- 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 disputed domain name resolves to a website offering services for the Complainant's products, and that the Respondent is thus using the disputed 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 trademark as to the source, sponsorship, affiliation or endorsement of the website.
- The Respondent has failed to respond to any communication attempts made by the Complainant, 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
Pursuant to paragraph 14 of the Rules, in case of failure of a party to comply with any of the time periods established by the Rules, the Panel shall proceed to a decision based on the Complaint. Since the Respondent failed to submit a Response, the Panel may decide the dispute based on the Complaint and may accept all reasonable factual allegations as true.
Under paragraph 4(a) of the Policy, to succeed the Complainant must prove that:
(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.
A. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
The Panel accepts that the Complainant is the owner of the registered AEG trademarks as evidenced in the annexes to the Complaint.
In this Panel's view, the addition of the geographical term "Ankara" and the addition of the Turkish word "servisi" meaning "services" does not avoid the confusing similartiy between the disputed domain name and the Complainant's trademark. The Panel further finds that the addition of the gTLD ".com" may be disregarded when determining whether the disputed domain name is confusingly similar to the Complainant's trademark, PRL USA Holdings, Inc. v. Spiral Matrix, WIPO Case No. D2006-0189.
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.
Accordingly, the Panel finds that the requirements of paragraph 4(a)(i) of the Policy are fulfilled by the Complainant.
B. Rights or Legitimate Interests
In accordance with paragraph 4(a)(ii) of the Policy, the Complainant must show that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant states, inter alia, that the Respondent has neither a license nor any other permission to use the Complainant's trademark or the disputed domain name and that there is no relationship whatsoever between the Complainant and the Respondent. 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 such rights or legitimate interests.
At the time of filing of the Complainant, the disputed domain name was resolving to website in Turkish that was offering repair services for the Complainant's products however at time of this decision the Panel notes that the Respondent removed the initial content from the website displaying an announcement that the disputed domain name was suspended either for being overused or because the reseller ran out of resources.
The Panel has visited the WayBack Machine also known as ("www.archive.org") in order to have an idea regarding the assertions made by the Complainant (which were also supported at Annex 8 of the Complaint). Accordingly, the Panel confirms that the Respondent was using the disputed domain name to promote its repair services for the Complainant's products without a clear disclosure of the relationship between the Parties and when the Respondent registered the disputed domain name, it knew that AEG 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 further notes that the Respondent's deactivation of the website after the notification of Complaint is further evidence that the Respondent does not have any rights or legitimate interests in the disputed domain name.
Finally, in the absence of a Response, 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.
Accordingly, the Panel finds that the Complainant has satisfied paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Complainant must show that the disputed domain name has been registered and is being used in bad faith under paragraph 4(a)(iii) of the Policy.
The Panel confirms that the Respondent registered the disputed domain name with awareness of the Complainant's marks, which had already been registered in many countries, including in Turkey, and used for several years. The Panel infers that the disputed domain name registration was made with the intention of trading on the value of the Complainant's mark, as demonstrated by the screenshots of the Respondent's website which displayed the Complainant's logos. The Panel finds that the Respondent deliberately attempted to attract Internet users to its website by creating a likelihood of confusion with the Complainant's marks.
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 <ankaraaegservisi.com> be transferred to the Complainant.
Uğur G. Yalçıner
Date: April 10, 2017