The Complainant is AB Electrolux of Stockholm, Sweden, represented by SILKA Law AB, Sweden.
The Respondent is Nexperian Holding Limited of Hangzhou, Zhejiang, China / yan guodong, Shang Hai You Yang Jin Chu Kou Mao Yi You Xian Gong Si of Shanghai, China.
The disputed domain name <electrolux-cvs.com> is registered with Alibaba Cloud Computing (Beijing) Co., Ltd. (the “Registrar”).
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on September 13, 2018. On September 14, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 17, 2018, 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 September 17, 2018 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 on September 19, 2018.
On September 17, 2018, the Center sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On September 18, 2018, 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 of the Complaint in both English and Chinese, and the proceedings commenced on September 24, 2018. In accordance with the Rules, paragraph 5, the due date for Response was October 14, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 15, 2018.
The Center appointed Deanna Wong Wai Man as the sole panelist in this matter on October 22, 2018. 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.
The Complainant is a Swedish joint stock company founded in 1901, and has become one of the world’s leading producers of kitchen appliances and equipment. It also commercializes cleaning products and floor care products. The Complainant is active globally, and has realized a sales revenue of SEK 122 billion, and employs about 56,000 people around the world.
The Complainant owns a portfolio of trademark registrations for ELECTROLUX (both word and device marks) in about 150 jurisdictions, including in the Respondent’s home jurisdiction China, see for instance Swedish trademark registration number 2003/05984, registered on October 13, 2003, and Chinese trademark registration 11314983, registered on January 7, 2014. The Complainant also owns a portfolio of official domain names, <electrolux.com>, registered on April 30, 1996, and <electrolux.com.cn>, registered on June 6, 1998, through which it provides online sales and delivers information about the products and services it offers.
The disputed domain name was registered by the Respondent on November 15, 2010. It directed to a website that had the look and feel of an official Electrolux website without any disclaimer that the website was not endorsed by the Complainant. Currently, it does not resolve to any active webpage.
The Complainant also provides evidence that prior to starting this procedure, it sent a cease-and-desist letter to the Respondent in order to settle this matter amicably, but it did not receive any answer.
The Complainant essentially contends that the disputed domain name is identical or confusingly similar to its prior trademarks for ELECTROLUX, that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and that the disputed domain name was registered and is being used in bad faith.
The Complainant claims that its trademarks are famous and well-regarded, and provides evidence of marketing materials and sales figures. The Complainant also provides a number of prior domain name decisions involving the Respondent, allegedly exposing a pattern of cybersquatting.
The Complainant also provides evidence that the disputed domain name was linked to an active website, providing competing services and products using the Complainant’s trademarks, without any disclaimer or reference to a license, distribution agreement or other permission from the Complainant. The Complainant essentially contends that such use does not confer any rights or legitimate interests in respect of the disputed domain name and constitutes use in bad faith.
The Respondent did not reply to the Complainant’s contentions.
Pursuant to paragraph 11(a) of the Rules, the language of the administrative proceedings shall be the language of the Registration Agreement, subject to authority of the Panel to determine otherwise having regard to the circumstances of the administrative proceeding.
The Complainant states that the Registration Agreement is available in both English and Chinese. The Complainant has filed the Complaint in English and requests that the language of proceedings be English.
The Panel has carefully considered all elements of this case, in particular, the availability of the Registration Agreement in both English and Chinese; the Complainant’s request that the language of proceedings be English; the lack of comment on the language of the proceeding and the lack of response of the Respondent (the Panel notes that the Respondent had the opportunity to put forward arguments in either English or Chinese); and the fact that Chinese as the language of proceedings could lead to unwarranted delays and costs for the Complainant. In view of all these elements, the Panel rules that the language of proceedings shall be English.
The Policy requires Complainant to prove three elements:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Based on the evidence and arguments submitted, the Panel’s findings are as follows:
The Panel finds that the Complainant has shown that it has valid rights in the sign ELECTROLUX based on its intensive use and registration of the same as a trademark, commencing several years prior to the registration of the disputed domain name.
Moreover, as to confusing similarity, the disputed domain name contains the Complainant’s trademark as the dominant element, with the addition of the element “-cvs”. The Complainant contends that the element “cvs” in the disputed domain name stands for the descriptive term “central vacuum system”. In accordance with section 4.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), the Panel has the power to undertake limited factual research into matters of public record. On the basis of its own limited research on publicly accessible websites, the Panel decides that “cvs” may indeed refer to “central vacuum system”, which is a suction method commonly used in vacuum cleaners. The Panel considers that, for the products connected to the sign “Electrolux”, relevant consumers would indeed consider the element “cvs” to refer to “central vacuum system”, which is a descriptive term and does not distinguish the disputed domain name from the Complainant’s mark. Accordingly, the Panel rules that the disputed domain name is confusingly similar to the Complainant’s trademarks and the first element required by the Policy has been fulfilled.
The Complainant has demonstrated that the Respondent has no rights or legitimate interests in the disputed domain name. The Panel notes that the Respondent is not an authorized reseller, service provider or distributor, and is not making legitimate noncommercial use or fair use of the disputed domain name. Moreover, the Respondent uses the Complainant’s trademarks as a dominant element in the disputed domain name and on its website (while it was active) and does not publish a disclaimer on its website. The Panel therefore considers that none of the circumstances of legitimate interests envisaged by paragraph 4(c) of the Policy apply. The Panel also notes that no evidence or arguments have been submitted by the Respondent in reply. The Panel therefore rules that the Complainant has satisfied the requirements of the second requirement under the Policy.
Given the reputation and fame of the Complainant’s trademarks, the registration of the disputed domain name, which incorporates such trademark in its entirety, as its dominant element, is clearly intended to mislead and divert consumers to the website at the disputed domain name. Even a cursory Internet search at the moment of registration of the disputed domain name would have made it clear to the Respondent that the Complainant owned trademarks in ELECTROLUX and uses them extensively, even in the Respondent’s home jurisdiction China. In the Panel’s view, this clearly indicates the bad faith of the Respondent at the moment of registration, and the Panel therefore rules that it has been demonstrated that the Respondent registered the disputed domain name in bad faith.
As to use of the disputed domain name in bad faith, the Complainant provides evidence that the website linked to the disputed domain name was used as a platform offering unauthorized services and products (through linking to unauthorized dealers) for the Complainant’s products. Such use of the disputed domain name is clearly in bad faith. On the date of this decision, the disputed domain name links to a blank website, but this does not preclude a finding of bad faith, see the WIPO Overview 3.0, section 3.3, in this regard: “From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or ‘coming soon’ page) would not prevent a finding of bad faith under the doctrine of passive holding.” Moreover, according to evidence submitted by the Complainant, Respondent has been involved in various other domain name disputes for registering domain names with trademarks it did not own (including another one containing the Complainant’s own marks). All these elements lead the Panel to identify a pattern of abusive registrations by the Respondent, and the Panel concludes from these elements that the Respondent is an opportunistic domain name cybersquatter, using the disputed domain name in bad faith to take unfair advantage of the Complainant’s trademarks. The Panel therefore rules that it has been demonstrated that the Respondent is using the disputed domain name in bad faith.
Finally, the Respondent has failed to provide any response or evidence to establish its good faith or absence of bad faith. The Panel therefore rules that the Complainant has satisfied the requirements of the third requirement under the Policy.
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-cvs.com> be transferred to the Complainant.
Deanna Wong Wai Man
Date: November 5, 2018
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