WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Aktiebolaget Electrolux v. Chen Jie Bing
Case No. D2013-1595
1. The Parties
The Complainant is Aktiebolaget Electrolux (“AB Electrolux”) of Stockholm, Sweden, represented by Melbourne IT Digital Brand Services, Sweden.
The Respondent is Chen Jie Bing of Anhui, China.
2. The Domain Name and Registrar
The disputed domain name <fzelectrolux.com> (“the Domain Name”) is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 10, 2013. On September 11, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On September 12, 2013, 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 18, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was October 8, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 9, 2013.
The Center appointed Karen Fong as the sole panelist in this matter on October 21, 2013. 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 and registered as a Swedish company in 1919. The Complainant is a world leading producer of appliances and equipment for kitchen and cleaning, selling more than 40 million products to customers in 150 countries every year including in China, where the Respondent is located. The Complainant’s products include refrigerators, dishwashers, washing machines, vacuum cleaners and cookers, and are sold under various trademarks including ELECTROLUX, AEG, AEG-ELECTROLUX. In 2010, the Complainant had sales of SEK 109 billion.
The ELECTROLUX trademark is registered in more than 150 countries including in China under registration numbers 70055, 862864 and 380211. Due to the extensive use of the ELECTROLUX trademark, the Complainant has established goodwill and reputation in the ELECTROLUX mark. The Complainant has also registered the trademark ELECTROLUX as a domain name under almost 700 generic Top-Level Domains (gTLDs) and country code Top Level Domains (ccTLDs) worldwide including <electrolux.com> and <electrolux.com.cn>.
The Respondent registered the Domain Name on May 7, 2013. The Domain Name is connected to a Chinese website (the “Website”) which offers maintenance service for ELECTROLUX air conditioners. The Website displays the ELECTROLUX trademark prominently. The Respondent did not respond to the cease and desist letter and reminders sent by the Complainant’s legal representatives in relation to the registration and use of the Domain Name.
5. Parties’ Contentions
The Complainant contends that the Domain Name is identical or confusingly similar to the ELECTROLUX trademark, the Respondent has no rights or legitimate interests with respect to the Domain Name and that the Domain Name was registered and is being used in bad faith. The Complainant requests transfer of the Domain Name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that:
(i) The 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 Domain Name; and
(iii) The Domain Name was registered and is being used in bad faith.
B. Identical or Confusingly Similar
The Panel accepts that the Complainant has rights to the trademark ELECTROLUX through use and registration that predates the Domain Name.
The consensus view under paragraph 1.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) says this:
“The threshold test for confusing similarity under the UDRP involves a comparison between the trademark and the domain name itself to determine likelihood of Internet user confusion. In order to satisfy this test, the relevant trademark would generally need to be recognizable as such within the domain name, with the addition of common, dictionary, descriptive, or negative terms typically being regarded as insufficient to prevent threshold Internet user confusion. Application of the confusing similarity test under the UDRP would typically involve a straightforward visual or aural comparison of the trademark with the alphanumeric string in the domain name.”
The Domain Name integrates the Complainant’s registered trademark ELECTROLUX with the two letter prefix, “fz”, and the gTLD “.com”. For the purposes of assessing identity or confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the generic domain suffix. The word “electrolux” is clearly recognizable within the Domain Name. The addition of the letters “fz” as a prefix to the word “electrolux” does not negate the confusing similarity encouraged by the Respondent’s complete integration of the ELECTROLUX trademark in the Domain Name.
The Panel finds that the Domain Name is confusingly similar to the ELECTROLUX trademark of the Complainant, and that the requirements of paragraph 4(a)(i) of the Policy are therefore fulfilled.
C. Rights or Legitimate Interests
The Complainant alleges that it has not found that the Respondent has any trademarks or trade names that correspond to the Domain Name. It has also not licensed, consented or otherwise authorized the Respondent to use its ELECTROLUX trademark in the Domain Name or any other manner.
The consensus view under paragraph 2.3 of the WIPO Overview 2.0 says this:
“Normally, a reseller or distributor can be making a bona fide offering of goods and services and thus have a legitimate interest in the domain name if its use meets certain requirements. These requirements normally include the actual offering of goods and services at issue, the use of the site to sell only the trademarked goods, and the site’s accurately and prominently disclosing the registrant’s relationship with the trademark holder. The respondent must also not try to ‘corner the market’ in domain names that reflect the trademark. Many panels subscribing to this view have also found that not only authorized but also unauthorized resellers may fall within such Oki Data principles. Pay-per-click (PPC) websites would not normally fall within such principles where such websites seek to take unfair advantage of the value of the trademark.”
In this case, the Respondent is not an authorized dealer, reseller or repairer. The Respondent calls itself the Fuzhou Electrolux Air Conditioning Aftermarket Service Center as well as Fuzhou Electrolux Air Conditioning Repairs. It is clear to this Panel that the content of the Website is intended to mislead Internet users that there is a connection between the Complainant and the Respondent. The website at the Domain Name does not accurately and prominently disclose the Respondent’s relationship with the Complainant. Therefore, the Panel finds the Oki Data principles for the rights or legitimate interests are not satisfied in this case. This is such a case. The Panel also takes the view as stated in the WIPO Overview 2.0 “… that it will generally be very difficult for a respondent to establish rights or legitimate interests where that respondent has no relevant trademark rights and without the authority of the complainant has used a domain name identical to the complainant’s trademark.”
The Panel finds that the Complainant has made out a prima facie case, a case calling for an answer from the Respondent. The Respondent has not responded and the Panel is unable to conceive of any basis upon which the Respondent could sensibly be said to have any rights or legitimate interests in respect of the Domain Name.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
D. Registered and Used in Bad Faith
To succeed under the Policy, a Complainant must show that the Domain Name has been both registered and used in bad faith. It is a double requirement.
The Panel is satisfied that the Respondent must have been aware of the Complainant’s ELECTROLUX trademark when it registered the Domain Name. The fact that the Domain Name incorporates the Complainant’s well-known trademark in its entirety and the Respondent is purporting to provide services for Electrolux goods without authorization from the Complainant is in the Panel’s view evidence that the registration of the Domain Name was in bad faith.
The Panel also concludes that the actual use of the Domain Name was in bad faith. The use of the Complainant’s trademark as the dominant part of the Domain Name is intended to capture Internet traffic from Internet users who are looking for the Complainant’s products. The Domain Name and the content of the Website is calculated to confuse Internet users that the Respondent is an authorised repairer, service center or dealer of the Complainant’s goods when this is not the case. This shows a clear intention on the part of the Respondent to attract for commercial gain by confusing and misleading Internet users into believing that the Website and the products sold and/or services offered on it were authorized or endorsed by the Complainant.
The above is clearly bad faith under paragraph 4(b)(iv) of the Policy and the Panel concludes that the Respondent’s registration and use of the Domain Name are 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 Domain Name <fzelectrolux.com> be transferred to the Complainant.
Date: November 4, 2013