WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Aktiebolaget Electrolux v. TREND MEDYA GRUP
Case No. D2010-1508
1. The Parties
The Complainant is Aktiebolaget Electrolux of Stockholm, Sweden, represented by Melbourne IT Digital Brand Services, Sweden.
The Respondent is TREND MEDYA GRUP of Istanbul, Turkey.
2. The Domain Names and Registrars
The disputed domain names: <atasehirelectroluxservisi.net>, <besiktaselectroluxservisi.com>, <etilerelectroluxservisi.com>, <floryaelectroluxservisi.com>, <istanbulelectroluxservisi.com>, <kadikoyelectroluxservisi.net> and <kemerburgazelectroluxservis.com> are all registered with Alantron BLTD.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 8, 2010. On September 8, 2010, the Center transmitted by email to Alantron BLTD a request for registrar verification in connection with the disputed domain names. On September 23 and 29, 2010, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing contact information for the disputed domain names.
The Center sent an email communication to the Complainant on October 1, 2010 providing registrant and contact information provided by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on October 4, 2010. On the same date, the Center transmitted an email to the parties in both Turkish and English regarding the language of proceedings. The Complainant replied on the October 4, 2010 for the language of the proceedings to be English. The Respondent did not object or reply in this regard.
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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 7, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was October 27, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 2, 2010.
The Center appointed Kaya Köklü as the sole panelist in this matter on November 22, 2010. 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.
Although the language of the Registration Agreement is in the Turkish language, the Panel determines in accordance with the Complainant’s request and the Rules 11(a), that the language of these administrative proceedings shall be the English language. The Panel finds that it would be inappropriate to conduct the proceedings in the Turkish language and request a Turkish translation of the Complaint while the Respondent has failed to raise any objection or even to respond to the Complaint or the Center’s communication with regard to the language of the proceedings even though communicated in Turkish and in English.
4. Factual Background
The Complainant is a famous Swedish joint stock company founded in 1901 and registered as a Swedish company in 1919. It is a leading and widely known producer of household appliances and equipment, in particular in the cleaning and kitchen sector.
The Complainant has registered the trademark ELECTROLUX as a word and figure mark in several classes in more than 150 countries including Turkey. All of them were registered long before the registration of the disputed domain names.
Furthermore, the Complainant has registered and operates the trademark ELECTROLUX as domain names under several gTLDs and ccTLDs worldwide, e.g., <electrolux.com>, <electrolux.net> and <electrolux.org>.
According to current record, the disputed domain name <atasehirelectroluxservisi.net> was created on April 16, 2010; <besiktaselectroluxservisi.com> on March 3, 2010; <etilerelectroluxservisi.com> on February 28, 2010; <floryaelectroluxservisi.com> on April 14, 2010; <istanbulelectroluxservisi.com> on March 3, 2010; <kadikoyelectroluxservisi.net> on April 16, 2010; and <kemerburgazelectroluxservis.com> on March 22, 2010.
The Respondent seems to be a company located in Turkey.
As evidenced by the Complaint, the Respondent offers on its websites linked to the disputed domain names an original parts and repair service for Electrolux products in Istanbul. The content and design of all websites linked to the disputed domain names are identical. Each of the disputed domain names comprises not only the mark ELECTROLUX and the generic term “servis” or “servisi” (which stands for “service” or “service for” in the English language) but also the name of the Turkish city Istanbul or some of its districts, namely Besiktas, Atasehir, Florya, Etiler, Kemerburgaz and Kadiköy.
5. Parties’ Contentions
The Complainant argues that it is one of the global leaders in home appliances and appliances for professional use, selling more than 40 million products to customers in 150 countries every year.
It is argued that the trademark ELECTROLUX enjoys due to extensive and long-term use on products and devices of the Complainant a worldwide reputation and acquired the status of a recognized trademark within the areas for appliances and equipment for kitchen, cleaning and outdoor products.
The Complainant requests the transfer of the disputed domain names.
The Complaint in particular argues that the disputed domain names are identical or at least confusingly similar to the Complainant’s trademark as it fully incorporates the Complainant’s ELECTROLUX trademark. The Complainant further argues that the only difference between the disputed domain names and the Complainant’s trademark is that the disputed domain names additionally comprise generic terms in the Turkish language with different kinds of prefixes and suffixes. It is argued that the use of additional generic terms may even add to the confusingly similarity as it creates the impression that any service offered under the disputed domain names is linked to official services by the Complainant.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interest in respect of the disputed domain names and has registered and used the disputed domain names in bad faith.
In this regard, the Complainant states that the Complainant has never granted a permission or license to the Respondent to use the trademark ELECTROLUX. In addition, the Complainant alleges that the Respondent has never used and does not intend to use the mark ELECTROLUX in connection with a bona fide offering of goods and services.
Finally, it is argued that the Respondent must have known the ELECTROLUX trademark well before the registration of the disputed domain names.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 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 is obliged to prove that each of the three following elements are satisfied:
(i) The disputed domain names are identical or confusingly similar to the trademark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the domain names; and
(iii) The disputed domain names have been registered and are 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 as appropriately accept the provided reasonable factual allegations in the Complaint as true, Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain names are confusingly similar to the Complainant's trademark ELECTROLUX.
Firstly, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights regarding its mark ELECTROLUX. As evidenced in the Complaint, the Complainant owns a large number of ELECTROLUX trademarks in more than 150 jurisdictions worldwide, most of them registered well before the year 2000. Long-standing trademark protection is also given in Turkey, where the Respondent is located.
Although not identical, the disputed domain names fully incorporate the Complainant’s ELECTROLUX trademark.
The disputed domain names differ from the respective trademark mainly through the addition of the generic term "servis" or “servisi” which stand for “service” or “service for” in the English language. Furthermore, each of the disputed domain names comprises the name of the city Istanbul or some of its districts. The Panel finds that the incorporation of such generic terms and the addition of the name of a city or its districts do not negate the confusing similarity between the Complainant's trademark and the disputed domain names. Moreover, the full inclusion of the Complainant’s well known mark may cause the false impression that any offered product or service under the disputed domain names is linked to the Complainant.
In other words, the Panel is of the opinion that the disputed domain names which wholly incorporate the Complainant's registered trademark ELECTROLUX is sufficient to establish confusing similarity for the purposes of the Policy (see Kabushiki Kaisha Hitachi Seisakusho (d/b/a Hitachi Ltd) v. Arthur Wrangle, WIPO Case No. D2005-1105).
In light of the above, the Panel concludes that the first requirement under paragraph 4(a) of the Policy is fulfilled.
B. Rights or Legitimate Interests
The Panel further concludes that the Respondent has not demonstrated any right or legitimate interest in the disputed domain name.
While the burden of proof remains with the Complainant, the Panel has recognized that this would result in the impossible task of proving a negative, in particular as the evidence needed to show the Respondent's lack of rights or legitimate interests is 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 responsibility shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain names in order to meet the requirements in 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 arguments to demonstrate a right or legitimate interest in the disputed domain names according to the Policy, paragraph 4(a)(ii) and 4(c).
With its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondent has no trademark, license or any similar right to use the Complainant’s mark in the disputed domain names.
In the absence of a Response by the Respondent, there is also no indication in the file that the Respondent is commonly known by the disputed domain names.
In addition, the Respondent has failed to demonstrate any of the three nonexclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or any other evidence of a right or legitimate interest in the domain names. In particular, the Respondent has failed to show that the disputed domain names have been used in connection with a bona fide offering of goods or services.
Finally, the Panel notes that the Respondent’s websites operating at the disputed domain names do not adequately disclose the relationship, or lack thereof, between the Respondent and the Complainant, thus conveying the false impression that the Respondent is an authorised repair center for the Complainant’s products. There is also no indication that the Respondent is making a legitimate non-commercial or fair use of the disputed domain names without the intent for commercial gain to misleadingly divert users or to tarnish the ELECTROLUX 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 names in bad faith.
The Panel is well aware of the reputation and recognition of the Complainant's trademark ELECTROLUX. The Panel believes that the Respondent must have known of this trademark when registering the disputed domain names. This is in particular likely as the disputed domain names have been registered well after the Complainant's trademark ELECTROLUX has become recognized worldwide. This is in particularly likely as the mark ELECTROLUX is also recognized in Turkey, where the Respondent is located.
It rather appears that the Respondent has registered the disputed domain names solely for the purpose of creating an association with the Complainant, in particular with its products and services. After having visited the Internet sites linked to the disputed domain names and reviewed the respective Annexes of the Complaint, the Panel is convinced that the Respondent has intentionally registered the disputed domain names to offer services for ELECTROLUX products by creating the impression that its offered service is made by or at least with the authorisation of the Complainant. Not only the disputed domain names but also the design of the Internet sites linked to these domain names give the impression that the Respondent has intended to mislead Internet users who may search for official repair services for their ELECTROLUX branded products.
Further, the Panel finds that the Respondent's failure to respond to the Complaint also supports the conclusion that it has registered and used the disputed domain names in bad faith in order to mislead consumers.
For the foregoing reasons, the Panel cannot conceive of any good faith use of the disputed domain names by the Respondent.
The Panel therefore concludes that the disputed domain names were registered and 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 all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names <atasehirelectroluxservisi.net>, <besiktaselectroluxservisi.com>, <etilerelectroluxservisi.com>, <floryaelectroluxservisi.com>, <istanbulelectroluxservisi.com>, <kadikoyelectroluxservisi.net> and <kemerburgazelectroluxservis.com> be transferred to the Complainant.
Dated: December 13, 2010