WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
AB Electrolux v. beijingfenggedia nqiyouxiangongsi
Case No. D2019-1642
1. The Parties
The Complainant is AB Electrolux, Sweden, represented by SILKA Law AB, Sweden.
The Respondent is beijingfenggedia nqiyouxiangongsi, China.
2. The Domain Name and Registrar
The disputed domain name <伊莱克斯.net> (<xn--qoqu8cp56a5j2a.net>) is registered with Chengdu Fly-Digital Technology Co., Ltd. (the “Registrar”).
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on July 12, 2019. On July 12, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 15, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on July 22, 2019 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint in English on July 22, 2019.
On July 22, 2019, the Center sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On July 22, 2019, 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 English and Chinese, of the Complaint, and the proceedings commenced on July 29, 2019. In accordance with the Rules, paragraph 5, the due date for Response was August 18, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 19, 2019.
The Center appointed Joseph Simone as the sole panelist in this matter on August 28, 2019. 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, AB Electrolux, is a Swedish joint stock company founded in 1901, and is one of the world’s largest producers of appliances and equipment for kitchen, cleaning and floor products. Its Electrolux brand is translated in Chinese to “伊莱克斯”, pronounced “yi lai ke si” which is contained in the disputed domain name in its entirety. The Complainant uses this translation of Electrolux on its Chinese website at “www.electrolux.com.cn”.
A review of the Chinese Trademark Office’s online database reveals that the Complainant owns numerous trademark registrations for or containing the Chinese characters “伊莱克斯”. The earlier of these registrations covering kitchen and cleaning appliances in Classes 9 and 11 are listed as follows:
- “伊莱克斯”, No. 894396 in Class 11, registered on November 7, 1996;
- “伊莱克斯”, No. 887694 in Class 9, registered on October 21, 1996;
- “ELECTROLUX 伊莱克斯”, No. 950971, in Class 11, registered on February 21, 1997;
- “ELECTROLUX 伊莱克斯”, No. 934791, in Class 9, registered on January 21, 1997.
The disputed domain name <伊莱克斯.net> was registered on April 27, 2015, by the Respondent. According to the Complaint, it resolved to a website in Chinese and English, with “Eilaicesx 北京伊莱克斯厨房设备有限公司” (English translation being “Eilaicesx Beijing Electrolux Kitchen Equipment Company”) at the top, offering for sale, inter alia, kitchen equipment. It currently resolves to a notice in Chinese that the page has shut down.
A cease and desist letter was sent by the Complainant to the Respondent on June 3, 2019, but no reply was received.
5. Parties’ Contentions
Identical or confusingly similar
The Complainant contends that the disputed domain name is identical or confusingly similar to the mark 伊莱克斯 in which it has rights. The Complainant is the owner of the 伊莱克斯 and ELECTROLUX trademarks in more than 150 countries including China. These registrations predate the registration of the disputed domain name. The trademark ELECTROLUX is well known and the Complainant uses the domain name resolving to the website “www.electrolux.com.cn” to advertise products and services to Chinese consumers under the 伊莱克斯 mark.
The disputed domain name entirely incorporates the Complainant’s registered trademark 伊莱克斯, and the generic Top-Level Domain (gTLD) “.net” should be disregarded under the confusing similarity test.
Therefore, the disputed domain name is identical to the Complainant’s trademark.
Rights or legitimate interests
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name for the following reasons. The Complainant has submitted screenshots indicating that, prior to filing the Complaint, the disputed domain name resolved to a website which had the look and feel of the Complainant’s website and included a copyright notice stating “©2019北京伊莱克斯厨房设备有限公司版权所有” (©2019 Beijing Electrolux Kitchen Equipment Co., Ltd. All Rights Reserved) at the bottom of the home page. The site used the Complainant’s trademark 伊莱克斯, as well as a logo Eilaicesx which is confusingly similar to an older version of the Complainant’s ELECTROLUX logo. The site promoted the sale of heaters, ventilators and kitchen supplies, and similar goods are offered by the Complainant. The Complainant contends that the Respondent’s use of the disputed domain name creates an overall impression that it is the Complainant. The Respondent has not been licensed to use the Chinese mark 伊莱克斯 in the disputed domain name, nor is it commonly known by the disputed domain name.
Registered and used in bad faith
The Complainant submits that the Respondent registered and is using the disputed domain name in bad faith. The Complainant tried to contact the Respondent by email on June 3, 2019, but received no response. Therefore, the Complainant filed this Complaint. As the Respondent’s website failed to disclose the Respondent’s lack of relationship with the Complainant, and the Respondent has no rights or legitimate interests in the disputed domain name, the Complainant believes the Respondent has impersonated the Complainant in order to attract visitors to the Respondent’s website by creating a likelihood of confusion as to the source or affiliation of its website, products or services. It is also highly unlikely based on the above facts that the Respondent was unaware of the Complainant’s rights in the mark.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1 Procedural Issues
A. Language of the Proceeding
In accordance with paragraph 11 of the Rules:
“[…] the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
In this case, the language of the Registration Agreement for the disputed domain name is in Chinese.
However, the Complainant filed the Complaint and amendment to the Complaint in English and requested that English be the language of the proceeding for the following reasons. The Respondent did not reply to the cease and desist letter sent by the Complainant, nor indicate that it did not understand it. Elements of the website are also in English and the Respondent registered the disputed domain name under the “.net” generic Top-Level Domain (“gTLD”) which is an international gTLD rather than the local country code Top‑Level Domain (“ccTLD”) “.cn”. Finally, the Complainant would face unnecessary trouble and delay and there would be no discernible benefit gained if Chinese were the language of the proceeding.
The Panel agrees that requiring the Complainant to translate the Complaint would cause undue burden and delay. Based on the Complainant’s screenshots of the website prior to being taken down, it does contain some English language, suggesting that the Respondent may know some English. In addition, the Respondent was notified in both English and Chinese regarding the nature and the specifics of the proceeding and the issue of language. It did not express a language preference or submit a Response. Given this and noting the aim of conducting proceedings with due expedition and in a cost-efficient manner, the Panel will proceed in English.
6.2 Substantive Issues
A. Identical or Confusingly Similar
Under the first element of the Policy, the Complainant must prove that the disputed domain name is identical or confusingly similar to the trademarks in which the Complainant has rights (paragraph 4(a)(i) of the Policy).
The Panel has verified through the Chinese Trademark Office’s online database that the Complainant owns the above listed trademark registrations for 伊莱克斯. Therefore, the Complainant possesses the requisite rights in the trademark.
The test for identity or confusing similarity can be determined by a simple side-by-side comparison of the disputed domain name with the trademark. A domain name incorporating the entirety or dominant feature of the relevant mark will normally satisfy the threshold test (Britannia Building Society v. Britannia Fraud Prevention, WIPO Case No. D2001-0505; V&S Vin & Sprit AB v. Ooar Supplies, WIPO Case No. D2004-0962).
In this case, the disputed domain name <伊莱克斯.net> incorporates the Complainant’s trademark in its entirety with no additional elements. Disregarding the gTLD as is standard practice, the disputed domain name is therefore identical to the Complainant’s trademark. Accordingly, the first element is satisfied.
B. Rights or Legitimate Interests
Under the second element, the Complainant must demonstrate that the Respondent should be deemed as having no rights or legitimate interests in respect of the disputed domain name that is the subject of the Complaint (paragraph 4(a)(ii) of the Policy).
The Respondent is not authorized, affiliated with or licensed by the Complainant. In the absence of authorization and any response from the Respondent, it must be assumed that the name on the website before it became inactive, “Eilaicesx 北京伊莱克斯厨房设备有限公司” is merely imitation of the Complainant’s name, and does not reflect that the Respondent is commonly known by the disputed domain name. Given this, the described use of the Complainant’s mark on the website, the advertised sales of goods and services similar to the Complainant’s offerings, and the overall imitation of the Complainant, cannot be considered bona fide use that would confer rights or legitimate interests on the Respondent.
Accordingly, the Respondent does not have rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
Under the last element, the Complainant must prove that the disputed domain name was registered and is being used in bad faith (paragraph 4(a)(iii) of the Policy).
A strong inference of bad faith can arise where the Respondent “knew or should have known” of the Complainant’s trademark rights (Volkswagen AG v. Jan-Iver Levsen, WIPO Case No. D2015-0069; Yahoo! Inc. v. Yahoo-Asian Company Limited, WIPO Case No. D2001-0051). The Complainant correctly surmises that it is highly unlikely that the Respondent was unaware of the Complainant, its business, and its trademark rights. The Complainant is one of the world’s largest home appliance manufacturers, and it is not a coincidence that the Respondent adopted the Complainant’s trademark in the disputed domain name, and set up a website advertising similar goods and services under the Complainant’s Chinese trademark, as well as an English transliteration similar to the ELECTROLUX trademark.
In addition, the Complainant sent the Respondent a cease and desist letter to which the Respondent did not respond, which is further indicative of bad faith. All of these circumstances indicate that the Respondent registered the disputed domain name and set up the associated website to deliberately mislead consumers for commercial gain, by impersonating the Complainant or implying an affiliation with it, when this is not the case. The fact that the website has now been taken down or is inactive does not change this conclusion, as the disputed domain name exactly reproduces the Complainant’s trademark without permission, and in any case, the website could be reactivated at any time.
Therefore, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith.
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 <伊莱克斯.net> (<xn--qoqu8cp56a5j2a.net>) be transferred to the Complainant.
Date: September 4, 2019