Westmore · UDRP DecisionElectrolux-acil-servis.com
The Panel ordered transfer of <electrolux-acil-servis.com>. It found the domain confusingly similar to the ELECTROLUX trademark because it wholly incorporated the mark and the Turkish terms “acil” and “servis” did not distinguish it. The Respondent lacked rights or legitimate interests because there was no authorization, evidence of being commonly known by the domain, or qualifying bona fide use. Bad faith was established from the Respondent’s knowledge of the mark, use of the domain for a Turkish commercial website offering Electrolux-related services without disclosing the lack of affiliation, and registration of at least one other domain incorporating the ARISTON brand.
The timeline behind electrolux-acil-servis.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
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This decision illustrates the treatment of a domain that combines a well-known appliance mark with local-language terms suggesting urgent repair services. The outcome rested not merely on incorporation of the mark, but on targeted commercial use, the absence of an affiliation disclaimer, failure to satisfy the Oki Data framework, and evidence of another brand-related registration.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION AB Electrolux v. Ali Demirli Case No. D2016-1364 1. The Parties The Complainant is AB Electrolux of Stockholm, Sweden, represented by SILKA Law AB, Sweden. The Respondent is Ali Demirli of Istanbul, Turkey. 2. The Domain Name and Registrar The disputed domain name <electrolux-acil-servis.com> is registered with OnlineNic, Inc. d/b/a China-Channel.com (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 5, 2016. On July 5, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 6, 2016, 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 July 18, 2016. In accordance with the Rules, paragraph 5, the due date for Response was August 7, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 10, 2016. The Center appointed Dilek Üstün Ekdial as the sole panelist in this matter on August 16, 2016. 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. The Complainant is also one of the largest producers in the world of similar equipment for professional users. In 2014, the Complainant had sales of SEK 112 billion and about 60,000 employees. The ELECTROLUX brand is the Complainant’s flagship brand for kitchen and cleaning appliances for both consumers and professional users. The Complainant is the owner of the registered trademark ELECTROLUX as a word and figure mark in several classes in more than 150 countries all over the world including in Turkey. It has been established in previous decisions that ELECTROLUX is considered a well-known trademark. The Complainant has registered a number of domain names under generic Top-Level Domains (“gTLD”) and country-code Top-Level Domains (“ccTLD”) containing the term “electrolux”, for example, <electrolux.com> (created on April 30, 1996) and <electrolux.com.tr> (created on August 7, 1997). The Complainant uses these domain names to connect to websites through which it informs potential customers about its ELECTROLUX mark and its products and services. The Respondent registered the disputed domain name on August 30, 2015. 5. Parties’ Contentions A. Complainant According to the Complainant, the dominant part of the disputed domain name <electrolux-acil-servis.com> comprises the term “electrolux”, which is confusingly similar as well as identical to the Complainant’s registered trademark ELECTROLUX, which has been registered by the Complainant as a trademark and domain name in numerous countries all over the world. The Complainant also states that the terms “servis” and “acil”, which have been included in the disputed domain name, are the Turkish words for “service” and “urgent”. Considering that the Complainant’s products on occasion will require technical assistance and repair services, the addition of said suffixes is intended to strengthen the impression that the disputed domain name is owned by or affiliated with the Complainant. The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has not found that the Respondent has any registered trademarks or trade names corresponding to the disputed domain name. It is also clear that no license or authorization of any other kind has been given by the Complainant to the Respondent to use the trademark. The Respondent registered the disputed domain name on August 30, 2015. The mere registration of a domain name does not give the owner a right or legitimate interest in respect of it. The Complainant states that the Respondent is today not using the disputed domain name in connection with a bona fide offering of goods or services. The disputed domain name is currently connected to a website offering services for Electrolux products and the Respondent is misleading Internet users to a commercial website, strongly suggesting that there is some official or authorized association with the Complainant. The Respondent is trying to sponge off the Complainant’s world famous trademark. The Complainant also adds that the Respondent does not qualify under the criteria laid down in the Oki Data Americas, Inc. v. ASD, Inc ., WIPO Case No. D2001-0903 and described in paragraph 2.3 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions , Second Edition (“WIPO Overview 2.0”). Finally, the Complainant contends that the disputed domain names have been registered and are being used in bad faith by the Respondent because of the following reasons: The disputed domain name is currently connected to a website offering Electrolux spare parts and services for Electrolux products; the Respondent is 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 mark as to the source, sponsorship, affiliation or endorsement of the website. 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 Respondent’s use of the disputed domain name is diverting traffic from the Complainant’s website, the Complainant also notes that the Respondent has registered at least one other domain name incorporating a well-known brand, namely ARISTON. For the purposes of the third element of the Policy, such pattern of abusive conduct shall be evidence bad faith registration. It is clear that the Respondent knows the domain name business and could easily have chosen a generic domain name not capitalizing on a well-known brand. The Complainant first tried to contact the Respondent on April 01, 2015 and April 20, 2016, through sending a cease-and-desist letter. No response was received. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 15(a) of the Rules requires the Panel to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Under paragraph 4(a) of the Policy, the Complainant bears the burden of showing: (i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) that the disputed domain name has been registered and is being used in bad faith, A. Identical or Confusingly Similar The Complainant has registered the trademark ELECTROLUX as a word and figure mark in several classes in more than 150 countries all over the world. The trademark ELECTROLUX was registered long before the registration of the disputed domain name. The Complainant has also registered domain names comprising its trademark ELECTROLUX as a domain name under almost 700 gTLDs and ccTLDs worldwide, among these are <electrolux.com.tr> (registered by Electrolux Turkey), <electrolux.com> and <electrolux.co.uk>. 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 ; EAuto, L.L.C. v. Triple S. Auto Parts d/b/a Kung Fu Yea Enterprises , Inc., WIPO Case No. D2000-0047 ; Bayerische Motoren Werke AG v. bmwcar.com , WIPO Case No. D2002-0615 . In this Panel’s view, the addition of the terms “servis” and “acil” does not sufficiently distinguish the disputed domain name from the Complainant’s trademark. Finally, the Respondent has brought no argument to contend that the disputed domain name is not identical or confusingly similar to a trademark or service mark in which the Complainant has rights. Therefore, the Panel finds that the requirement of paragraph 4(a)(i) of the Policy is met. B. Rights or Legitimate Interests 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. It is clear for this Panel that the Respondent has not demonstrated any bona fide offering of goods and services by its use of the disputed domain name. Nor has the Respondent shown that it has been commonly known by the disputed domain name. The Complainant showed, inter alia ¸ that the Respondent has neither a license nor any other permission to use the disputed domain name and that use of the domain name did not meet the Oki Data requirements. 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. The Panel finds that given the use of the disputed domain name, when the Respondent registered the disputed domain name it knew that ELECTROLUX was the trademark of the Complainant, and that it registered the disputed domain name because it would be recognized as such. The Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. Accordingly, the Panel finds that the requirement of paragraph 4(a)(ii) of the Policy is met. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy provides a list of indicative circumstances that suggest bad faith registration and use, however, such list is not exhaustive and a finding of bad faith depends on the circumstances of each case. Based on the circumstances, when the Respondent registered the disputed domain name, it knew that the disputed domain name incorporated the trademark of the Complainant and registered it in order to take advantage of the strength of the trademark and gain commercial benefit from the notoriety of the Complainant’s trademark. The Panel, in accordance with previous decisions issued under the Policy, is of the opinion that this knowledge may be considered, in appropriate cases, also an indication of bad faith (see Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net , WIPO Case No. D2000-0226 ). The disputed domain name is currently connected to a website in Turkish offering services for Electrolux products in Turkey. The website to which the disputed domain name resolves to does not include any disclosure as regards to the lack of a relationship between the Respondent and the trademark owner, i.e. , the Complainant. Consequently, the Respondent is using the dispute domain name to intentionally attempt to attract, for commercial gain, Internet users to its websites, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the websites. Moreover, the Respondent has registered at least one other domain name incorporating a well-known brand, namely ARISTON. For the purposes of the third element of the Policy, such pattern of abusive conduct shall be further evidence of bad faith registration. In view of the above, the Panel finds that the Respondent has registered and used the disputed domain name in bad faith, and that the requirement of paragraph 4(a)(iii) of the Policy is met. 7. Decision 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 <electrolux-acil-servis.com> be transferred to the Complainant. Dilek Üstün Ekdial Sole Panelist Date: August 30, 2016
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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