WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
AB Electrolux v. Taner Araz, Kusadasi Teknik
Case No. D2017-1588
1. The Parties
The Complainant is AB Electrolux of Stockholm, Sweden, represented by SILKA Law AB, Sweden.
The Respondent is Taner Araz, Kusadasi Teknik of Aydin, Turkey.
2. The Domain Name and Registrar
The disputed domain name <aegservismerkezi.com> is registered with GoDaddy.com, LLC (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 15, 2017. On August 16, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 16, 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 August 30, 2017. In accordance with the Rules, paragraph 5, the due date for Response was September 19, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on September 20, 2017.
The Center appointed Kaya Köklü as the sole panelist in this matter on September 26, 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 founded in 1901. It is a widely known producer of household appliances and equipment, in particular in the cleaning and kitchen sector. Electrolux acquired and obtained the rights to the brand AEG in 2005. The AEG brand is used for a variety of household products such as washing machines, refrigerators, dishwashers and ovens.
The Complainant and its affiliates own a large number of AEG trademark registrations around the world, including in Turkey. According to the provided documents in the case file, the Complainant is inter alia the registered owner of an International Trademark registration for AEG No. 802025, registration date December 18, 2002), which covers trademark protection in classes 7, 8, 9, 10, 11 and 17 in many jurisdictions, including Turkey.
The Complainant and its affiliates also own a number of domain names which incorporate the AEG trademark, such as <aeg.com> and <aeg.com.tr>.
The Respondent appears to be an individual from Turkey.
The disputed domain name was registered on May 1, 2014.
The disputed domain name resolves to an active website, which is used for offering various repair services for AEG and other companies' products in the Turkish language. The Complainant's screenshots show that the Respondent prominently uses various trademarks (including the Complainant's trademark) to promote its services without publishing a disclaimer describing the non-existent relationship between the Parties or any other owner of the used trademarks.
According to documents provided in the case file, the Respondent did not reply to a letter previously sent by the Complainant 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 is of the opinion that the disputed domain name is confusingly similar to its AEG 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 repairs and 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 AEG trademark, when registering the disputed domain name in 2014. Concerning bad faith use, the Complainant believes that in light of Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903, the Respondent cannot successfully rely on a potential right or legitimate interest in the disputed domain name as a reseller or distributor of the Complainant's products.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
According to paragraphs 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 the trademarks 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 relevant, accept the provided reasonable factual allegations in the Complaint as true. Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
It is further noted that the Panel has taken note of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0") and, where appropriate, will decide consistent with the WIPO Overview 3.0.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has registered trademark rights in the mark AEG by virtue of a large number of longstanding trademark registrations, including trademark registrations covering protection in Turkey.
The Panel further finds that the disputed domain name is confusingly similar to the Complainant's registered AEG trademarks, as it fully incorporates the Complainant's trademark. The mere addition of the descriptive Turkish terms "servis" and "merkezi", which mean "service" and "center" in the English language, does not serve to distinguish the disputed domain name from the Complainant's registered AEG trademarks.
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 failed to demonstrate any 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, paragraphs 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 AEG 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 tries to gain commercial benefit by using a domain name which fully incorporates the Complainant's trademark AEG.
The Panel is convinced that the Respondent cannot be assessed as a legitimate reseller or distributor of the Complainant's products, as the criteria as set forth in Oki Data Americas, Inc. v. ASD, Inc., supra are not fulfilled in the present case. The Panel particularly notes that the Respondent's website which is linked to the disputed domain name does not adequately disclose the relationship, or lack thereof, between the Respondent and the Complainant, thus creating the false impression that the Respondent might be an official and authorised repair and service agency for the Complainant's products. In view of the Panel, this takes the Respondent out of the Oki Data safe harbour for purposes of the second element
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 notes the reputation and recognition of the Complainant's trademark AEG. The Panel believes that the Respondent must have known this trademark when registering the disputed domain name. This is in particular likely as the disputed domain name has been registered well after the Complainant's AEG trademark registration covering protection for Turkey as well.
It rather 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 Complainant's screenshots in the case file and the website linked to the disputed domain name, the Panel is convinced that the Respondent has intentionally registered the disputed domain name in order to generate traffic to its own business. The Panel notes that the Respondent has not published any disclaimer on its website linked to the disputed domain name to explain that there is no existing relationship between itself and the Complainant. The Panel rather believes that the Respondent is using the disputed domain name to intentionally attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant's AEG (and other third parties') trademarks as to the source, sponsorship, affiliation or endorsement of its website.
In any case, the Respondent does not meet the Oki Data principles on all elements, namely lack of a distinctive disclaimer, providing services also for other products competing with the Complaint's trademark and representing themselves as the trademark owner by displaying the Complainant's logo on the website and offering services for AEG products among other things.
Lastly, the Panel finds that the Respondent's failure to respond to the Complainant's warning letter and to the Complaint also supports the conclusion that it has registered and is using the disputed domain name in bad faith. The Panel believes that, if the Respondent did in fact have legitimate purposes in registering and using the disputed domain name, it would have probably responded.
The Panel therefore concludes that the disputed domain name was registered and is 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 <aegservismerkezi.com> be transferred to the Complainant.
Date: October 9, 2017