The Complainant is Aktiebolaget Electrolux of Stockholm, Sweden, represented by Melbourne IT Digital Brand Services, Sweden.
The Respondent is Mehmet Kirci of Istanbul, Turkey.
2. The Domain Name and Registrar
The disputed domain name <electroluxtr.com> is registered with FBS Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 26, 2010. On February 26, 2010, the Center transmitted by email to FBS Inc., a request for registrar verification in connection with the disputed domain name. On March 10, 2010, the Registrar transmitted by email to the Center its incomplete verification response confirming that the Respondent is listed as the registrant and providing details of the registration noting it was due to expire on April 13, 2010. Following a request by the Center transmitted by email on March 12, 2010, the Registrar confirmed that the disputed domain name would be locked after lapse of the expiry date locked until the UDRP proceedings are concluded. The Center transmitted by email to the Registrar and the Complainant communication stating paragraph 3.7.5.7 of the ICANN Expired Domain Deletion Policy grants the Complainant the option to renew or restore the disputed domain name that was going to expire under the same commercial terms as the registrant.
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 March 23, 2010. Having not received a complete registrar verification reply from the Registrar, the Center proceeded on the basis that the Registrant contact information displayed under the publicly available WhoIs was accurate. In accordance with the Rules, paragraph 5(a), the due date for Response was April 12, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 13, 2010.
The Center appointed Gökhan Gökçe as the sole panelist in this matter on April 21, 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.
4. Factual Background
The Complainant is a Swedish joint stock company founded in 1901 and registered as a Swedish company in 1919 as evidenced in Annex 7 to the Complaint. The Complainant is a world leading producer of appliances, kitchen equipment, cleaning products and floor care products. The Complainant has devoted substantial resources to advertising and promoting its trademark ELECTROLUX and is a market leader in white goods and floor care products in Europe and North America and has a presence in Turkey, as evidenced in Annex 8 to the Complaint.
The Complainant has trademark registrations containing its trade name, ELECTROLUX in 150 countries as evidenced in Annex 6 to the Complaint, and registered ELECTROLUX as a Community Trademark (CTM) before the Office for Harmonization in the Internal Market (OHIM) on September 16, 1998 as evidenced in Annex 6 to the Complaint.
The Complainant is the registered owner of close to 700 domain names including the word ELECTROLUX as evidenced in Annex 9 to the Complaint, including <electrolux.com.tr> registered by Electrolux Turkey on August 7, 1997.
The Respondent is Mehmet Kirci of Istanbul, Turkey. The Respondent registered the disputed domain name <electroluxtr.com> on April 13, 2009.
5. Parties' Contentions
A. Complainant
In accordance with paragraph 4(b)(i) of the Policy, the Complainant requests that the domain name <electroluxtr.com> be transferred to the Complainant.
The Complainant submits the grounds for these proceedings are listed in paragraph 4(a) of the Policy.
Identical or Confusingly Similar
The Complainant has widely advertised and promoted its trade name and owns registered trademarks containing its trade name ELECTROLUX in several countries. The Complainant submits its trade name ELECTROLUX has acquired the status of a well-known mark and enjoys the protections provided under the Paris Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights.
The Complainant alleges that the disputed domain name is confusingly similar to Complainant's trademark ELECTROLUX and notes that the dominant part of the disputed domain name is “electrolux,” which is identical to its registered trademark.
The Complainant contends that the addition of the suffix “tr” does not have any impact on the overall impression of the dominant part of the disputed domain name and is therefore not relevant in determining whether it is confusingly similar to a trademark. The Complainant further argues the addition of the letters “tr” to the trade name ELECTROLUX suggests the domain name and corresponding web site is in Turkey and there is a substantial risk that Internet users will believe the disputed domain name resolves to a website either owned by the Complainant or that it has some kind of commercial relation with the Complainant.
The Complainant contends the Respondent deliberately registered the disputed domain name to exploit the goodwill and reputation of the trademark and submits that this dilutes and/or tarnishes its trademark.
Rights or Legitimate Interests
The Complainant notes the Respondent registered the disputed domain name <electroluxtr.com> on April 13, 2009 subsequent to the vast majority of the Complainant's ELECTROLUX trademark registrations. The Complainant contends it is a well-known trademark throughout the world and it is highly unlikely that the Respondent would not have known of the Complainant's legal rights in the name at the time of the registration. It is submitted that the Respondent intentionally chose a domain name containing a registered trademark to misleading diverting Internet users.
The Complainant notes the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services and it resolves in a website that contains services in direct competition with the Complainant. Furthermore, the web site is almost identical to the Complainant's official Turkish Electrolux web site displaying its trade logo as evidenced in Annexes 8 and 10 to the Complaint.
The Complainant contends the Respondent has no connection with Complainant, and that Complainant has not licensed or otherwise authorised the Respondent to use the trademark.
Registered and Used in Bad Faith
The Complainant submits its trademark ELECTROLUX is an established and well-known trademark with a substantial and widespread reputation The Complainant has used the trademark ELECTROLUX substantially and continuously for over 80 years promoting products and services in many countries.
The Complainant contends the goodwill of its trademark ELECTROLUX was known to the Respondent which is evident as the disputed domain name resolves in a website almost identical to the Complainant's official Turkish web site.
The Complainant submits if Internet users click on the link “Ana Sayfa” (which means “home page” in Turkish) you are redirected to the site “www.evserteknik.com” which promotes services for competing brand. The Complainant contends the Respondent is using the disputed domain name to intentionally attempt to attract, form commercial gain, Internet users to the website, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of its website.
The Complainant notes it first became aware of the Respondent's registration of the disputed domain name in May 2009 and that it sent a cease and desist letter to the Respondent on May 21, 2009. The Complainant advised the Respondent that the unauthorized use of the ELECTROLUX trademark within the disputed domain name violated the Complainant's rights in its trademark ELECTROLUX. The Complainant requested the immediate transfer of the domain name and offered compensation for the expenses of registration and renewal fees (not exceeding out of pocket expenses). The Respondent did not reply to the letter. A reminder was sent on June 1, 2009 and then a final reminder, which was also translated into Turkish, on June 30, 2009 but the Respondent never replied as evidenced in Annex 11 to the Complaint.
The Complainant contends that the Respondent must be considered to have registered and is using the domain name <electroluxtr.com> in bad faith.
B. Respondent
The Respondent did not reply to the Complainant's contentions. Pursuant to paragraph 5(e) of the Rules, if a respondent does not submit a response, in the absence of exceptional circumstances, the panel shall decide the dispute based upon the complaint.
However, failure to respond in a Policy proceeding does not constitute an admission of any pleaded matter. The Panel will proceed to evaluate Complainant's evidence and his own examination of the Respondent's website against the requirements of paragraph 4(a) of the Policy, Doğan Gazetecilik Anonim Şirketi v. AZ Z Polat, WIPO Case No. D2010-0163.
6. Discussion and Findings
Language of the Proceedings
The language of the Registration Agreement is in unknown. The Complainant submits that English should be the language of the proceedings. Paragraph 11(a) of the Rules allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding, Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui'erpu (HK) electrical appliance co. ltd.,WIPO Case No. D2008-0293.
To order translation of the Complaint would cause delay to the proceedings, the Respondent did not reply to the Complainant's cease and desist letters even when the last letter was in Turkish, the Respondent has not indicated that he did not understand the content of the Compliant and the Respondent has shown no interest in submitting a response. In accordance with paragraph 11, considering fairness to the parties, keeping proceedings cost-efficient and expeditious, the Panel finds that English shall be the language of the proceedings, Fxopen Investments Inc. v. Tong Tingyun, WIPO Case No. D2009-1527.
Paragraph 4(a) of the Policy sets forth the following three elements which the Complainant must prove, during the administrative proceedings, to merit a finding that the domain name of the Respondent be transferred to the Complainant:
(a) The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(b) The Respondent has no rights or legitimate interests in respect of the disputed domain name; and,
(c) The disputed domain name has been registered and is being used in bad faith.
Pursuant to paragraph 15(a) of the Rules, the Panel shall decide a 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.
In the absence of a reply from the Respondent the Complainant must still establish the elements of paragraph 4(a) of the Policy, the Respondent's default does not automatically result in a decision in favour of the Complainant however the Panel may accept as true factual allegations in the Complaint, The Vanguard Group, Inc. v. Lorna Kang, WIPO Case No. D2002-1064.
A. Identical or Confusingly Similar
The Policy simply requires the Complainant to demonstrate that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights.
The Panel is satisfied that the Complainant is the owner of several registrations of the trademark as evidenced in Annex 6 to the Complaint. The disputed domain name is <electroluxtr.com>, the Panel finds the addition of the letters “tr” to the Complainant's trademark does not distinguish the disputed domain name from the trademark. On the contrary, in the Panel's view the addition of “tr” heightens confusion as tr combined with the Complainant's trademark simply suggests a geographical location, The National Exhibition Centre Ltd. v. Ukticketfactory.Com, Kolos Kaszaly,
WIPO Case No. D2010-0064.
In view of the foregoing, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights, and therefore, the Complainant has succeeded on this first element under the Policy.
B. Rights or Legitimate Interests
In accordance with paragraph 4(a)(ii), the Complainant must prove that the Respondent has no rights or legitimate interests in respect of the disputed domain name. Although the Policy states that the Complainant must prove each of the elements in paragraph 4(a), it is often observed that it is difficult for a complainant to prove a negative and it has therefore generally accepted under the Policy that, once a complainant has presented a prima facie case of a respondent's lack of rights or legitimate interests in a domain name, the burden shifts to the respondent. The Policy at paragraph 4(c) provides various ways in which a respondent may demonstrate rights or legitimate interests in the domain name.
In the absence of any other evidence the Panel relies on the evidence of screen shots provided by the Complainant at Annex 8 to the Complaint. The Panel notes the Respondent has adopted the Complainant's trade logo in its web site creating a false impression of association or affiliation with the Complainant to mislead Internet users for Commercial gain, Shaw Industries Group, Inc., Columbia Insurance Company v. Administrator, Domain, WIPO Case No. D2007-0583. Furthermore, the website contains the Complainant's logo and offers goods and services in direct competition with the Complainant, the Panel finds the Respondent must have known of the Complainant's trade mark, F. Hoffmann-La Roche AG v. Direct Privacy ID 9CCC6 WIPO Case No. D2010-0139. The Panel considers such use to be clearly commercial in nature that cannot be construed as “legitimate non-commercial or fair use” and concludes the Respondent's use of the domain name cannot be considered use in connection with a bona fide offering of goods or services.
Paragraph 4(a)(ii) requires the Complainant to prove that the Respondent has no rights to or legitimate interests in the disputed domain name. The Complainant has established a prima facie case that the Respondent lacks a right or legitimate interest in the disputed domain name, Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.
As the Respondent failed to submit a response and rebut the allegations made against him the Panel accepts the Complainants contentions as true, The Great Eastern Life Assurance Company Limited v. Unasi Inc.,WIPO Case No. D2005-1218. In the absence of a response, the Respondent was unable to demonstrate a legitimate interest or right in the disputed domain name and therefore the Panel accepts the Complainant's contentions as true. The Panel therefore concludes that the Respondent has not satisfied paragraph 4(c) of the Policy and concludes that the Respondent has no rights or legitimate interests in the disputed domain name.
The requirements of 4(a)(ii) are fulfilled and consequently the Panel finds in favour of the Complainants on the second element of the Policy.
C. Registered and Used in Bad Faith
Finally, the Complainant must show that the disputed domain name has been registered and is being used in bad faith under paragraph 4(a)(iii) of the Policy.
The Respondent uses the domain name to resolve in a website that offers goods and services in direct competition with the Complainant. In light of the fact that disputed domain name was being used to promote goods and services that are in direct competition with the Complainant, the Respondent's website displays the Complainant's logo and is almost identical to the Complainant's official website, the Panel finds the Respondent must have been aware of the Complainant's trademark before registering the disputed domain name, La Française des Jeux v. Mark L Virgi, WIPO Case No. D2006-0283 and therefore registered the disputed domain name in bad faith.
The Panel finds that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to an on-line location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website or other location, Delta Air Lines, Inc. v. Ruslan Moussaev, WIPO Case No. D2009-0718. The Panel considers that such use of the trademark and logo without any authorisation or association with the Complainant is in bad faith, Groupe AUCHAN v. Beijingyidutiandikejifazhanyouxiangongsi, WIPO Case No. D2009-1746.
The Panel finds there is clear evidence that the Respondent registered the domain name primarily for the purpose of commercial gain by exploiting the goodwill of the Complainant's trademark and therefore registered and is using the disputed domain name in bad faith.
7. Decision
For all 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 <electroluxtr.com> be transferred to the Complainant.
Gökhan Gökçe Sole Panelist
Dated: May 10, 2010
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