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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Aktiebolaget Electrolux v. Mister Manager

Case No. D2008-0823

1. The Parties

Complainant is Aktiebolaget Electrolux, of Stockholm, Sweden, represented by Melbourne IT Digital Brand Services AB, Sweden.

Respondent is Mister Manager, of Utah, United States of America.

2. The Domain Name and Registrar

The disputed domain name <electrolux-appliance.com> is registered with Melbourne IT Ltd. trading as Internet Names Worldwide.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 28, 2008. On May 28, 2008, the Center transmitted by email to Melbourne IT Ltd. trading as Internet Names Worldwide a request for registrar verification in connection with the domain name at issue. On May 30, 2008, Melbourne IT Ltd. trading as Internet Names Worldwide transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, Complainant filed an amendment to the Complaint on June 3, 2008. 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”), 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 Respondent of the Complaint, and the proceedings commenced on June 3, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was June 23, 2008. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on June 24, 2008.

The Center appointed Manoel J. Pereira dos Santos as the sole panelist in this matter on July 2, 2008. 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

According to the documentary evidence and contentions submitted, Complainant is a Swedish company founded in 1901 and registered as of 1910, and is one of the world’s largest producers of home appliances and equipment for kitchen, cleaning and outdoor use and of similar equipment for professional uses. According to the contentions submitted, Complainant has leading market positions both in Europe and North America.

The trademark upon which the Complaint is based is ELECTROLUX. The Panel notes that Complainant has produced a list of all trademark registrations around the world owned by Complainant but has not produced a copy of any trademark registration as it would be advisable under Rule 3(b)(xv). However, the Panel notes that Complainant’s ownership of the ELECTROLUX trademarks has been confirmed in at least one previous WIPO UDRP decision. See Aktiebolaget Electrolux v. 2220 Internet Coordinator, WIPO Case No. D2005-1184 (where the panel found that “[t]he Complainant’s rights in the two trademarks ELECTROLUX and KELVINATOR are uncontestable.”). In addition, a search of the online register of the United States Patent and Trademarks Office conducted by the Panel on July 7, 2008, shows that Complainant is the actual owner of a number of U.S. trademark registrations for ELECTROLUX.

The Panel accepts Complainant’s contentions that Aktiebolaget Electrolux is a well known company worldwide in the field of kitchen, cleaning and outdoor appliances and that the ELECTROLUX trademark is a famous trademark worldwide.

According to the documentary evidence and contentions submitted, Complainant has registered various domain names containing the ELECTROLUX trademark plus a word which is descriptive of its products, such as <electroluxappliances.com>, <electrolux-at-home.com>, <electrolux-kitchen.com>, <electrolux-majorappliances.com>, and <electrolux-vacuum.com>, including <electrolux.com>.

The domain name <electrolux-appliance.com> was registered on January 22, 2007. According to the documentary evidence and contentions submitted, the disputed domain name originally resolved to a website with sponsored links, but has been inactive since on or after May 27, 2008. Complainant sent cease and desist letters to Respondent by regular mail and email. Complainant states that no response was ever received.

5. Parties’ Contentions

A. Complainant

Complainant argues that Respondent’s domain name is confusingly similar to the trademark in which Complainant has rights because it comprises the word “electrolux” and creates an obvious association with the ELECTROLUX trademark. Complainant also contends that the addition of the top-level domain “.com” does not change the likelihood of confusion.

Complainant further contends that Respondent does not have rights or legitimate interests regarding the disputed domain name because (i) Respondent has no trademark or tradename rights in the disputed domain name; (ii) there is no connection with or cooperation between Complainant and Respondent; and (iii) Respondent has intentionally chosen a domain name based on a registered trademark to generate more traffic to its website and generate income for itself.

Finally, Complainant contends that Respondent registered the disputed domain name in bad faith because (i) the ELECTROLUX trademark is well known worldwide, (ii) Respondent’s failure to respond to Complainant’s contact provide strong support for a determination of bad faith and use, and (iii) use of the ELECTROLUX trademark is an “opportunistic bad faith”.

B. Respondent

Respondent did not reply to Complainant’s contentions.

6. Discussion and Findings

A. Effect of the Default

The consensus view is that the respondent’s default does not automatically result in a decision in favor of the complainant and that the complainant must establish each of the three elements required by paragraph 4(a) of the UDRP (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, para. 2.2). However, paragraph 14(b) of the Rules provides that, in the absence of exceptional circumstances, a panel shall draw such inferences as it considers appropriate from a failure of a party to comply with a provision or requirement of the Rules.

This Panel finds that there are no exceptional circumstances for the failure of Respondent to submit a Response. As a result, the Panel infers that Respondent does not deny the facts asserted and contentions made by Complainant from these facts. Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441; LCIA (London Court of International Arbitration) v. Wellsbuck Corporation, WIPO Case No. D2005-0084; Ross-Simons, Inc. v. Domain.Contact. WIPO Case No. D2003-0994. Therefore, asserted facts that are not unreasonable will be taken as true and Respondent will be subject to the inferences that flow naturally from the information provided by Complainant. See Reuters Limited v. Global Net 2000, Inc., supra; RX America, LLC v. Matthew Smith, WIPO Case No. D2005-0540.

B. Identical or Confusingly Similar

The ELECTROLUX trademark in which Complainant has rights is distinctive and the domain name <electrolux-apliance.com> incorporates such mark in its entirety. In this type of combination it is clear that the ELECTROLUX trademark stands out and leads the public to think that the disputed domain name is somehow connected to the owner of the registered trademark. The Panel concurs with the opinion of several prior WIPO UDRP panels which have held that, when a domain name wholly incorporates a complainant’s registered trademark that may be sufficient to establish confusing similarity for purposes of the Policy. See, e.g., Telstra Corporation v. Barry Cheng Kwok Chu, WIPO Case No. D2000-0423; Pfizer Inc. v. United Pharmacy Ltd, WIPO Case No. D2001-0446; E.I. du Pont de Nemours and Company v. Richi Industry S. r. l., WIPO Case No. D2001-1206; Utensilerie Associate S. p. A. v. C & M, WIPO Case No. D2003-0159; Shaw Industries Group Inc., Columbia Insurance Company v. Wan-Fu China, Ltd., WIPO Case No. D2007-0282. That is particularly true where the disputed domain name incorporates a famous trademark, as in the instant case.

The addition of the descriptive term “appliance” does not affect a finding that the disputed domain name is confusingly similar to Complainant’s registered trademarks. It has been consistently decided that the addition of generic or descriptive terms to an otherwise distinctive trademark name is to be considered confusingly similar to the trademark. See, e.g., Quixar Investments Inc. v. Dennis Hoffman, WIPO Case No. D2000-0253.

Also, the suffix “.com” is non-distinctive because it is required for the registration of the domain name. RX America, LLC v. Mattew Smith, WIPO Case No. D2005-0540.

Therefore, the Panel finds that the <electrolux-appliance.com> domain name is clearly confusingly similar to Complainants’ ELECTROLUX trademark and, as a result, finds that the requirement of paragraph 4(a)(i) of the Policy is met.

C. Rights or Legitimate Interests

The Panel finds as reasonable Complainant’s contentions that (i) Respondent does not have any affiliation with Complainant and has not been authorized by Complainant to register and use the disputed domain name or the ELECTROLUX trademark; and (ii) Respondent has no trademark rights in the term “electrolux-appliance”.

The Panel concurs with the prior WIPO UDRP decisions holding that there is no bona fide offering of goods or services where the disputed domain name resolves to a website containing sponsored links. In Deutsche Telekom AG v. Dong Wong, WIPO Case No. D2005-0819, the panel held that respondent’s use of the domain name for a commercial website with links to competitors of the complainant cannot constitute a bona fide use of the domain name pursuant to paragraph 4(c)(i) of the Policy. That panel relied on Chanel, Inc. v. Cologne Zone, WIPO Case No. D2000-1809, where the panel held that bona fide use does not exist when the intended use is a deliberate infringement of another's rights.

As a result of an independent research made on July 12, 2008 by attempting to access a website to which the domain name at issue resolves, the Panel noted that currently the disputed domain name is apparently inactive. Therefore, Panel has not found any of the types of evidence set forth in paragraph 4(c) of the Policy from which the Panel might conclude that Respondent has any rights or legitimate interests in the disputed domain names.

Finally, the Panel finds that Complainant has satisfied its burden of providing sufficient evidence to show that Respondent lacks rights to or legitimate interests in the disputed domain name. It has been established by previous WIPO UDRP decisions that, “while the overall burden of proof rests with the complainant, the burden of proof shifts to the respondent where the complainant establishes a prima facie case showing lack of rights and legitimate interests of the respondent to the disputed domain name”. Caixa DґEstalvis I Pensions de Barcelona (“la Caixa”) v. Young N, WIPO Case No. D2006-0406; Croatia Airlines dd v. Modern Empires Internet Ltd., WIPO Case No. D2003-0455.

In light of the foregoing, the Panel finds that the requirement of paragraph 4(a)(ii) of the Policy is met.

D. Registered and Used in Bad Faith

In light of the reputation of the ELECTROLUX trademark, the reproduction by Respondent of this trademark in its entirety, and the combination of this trademark with a descriptive term, it is clear that Respondent in all likelihood knew of the existence of Complainant’s trademark and of its relevance in the United States market. As decided before, “knowledge of a corresponding mark at the time of registration of the domain name suggests bad faith”. Caixa DґEstalvis I Pensions de Barcelona (“La Caixa”) v. Eric Adam, WIPO Case No. D2006-0464. See also Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270; Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441.

Also, as indicated in another UDRP WIPO decision, “it would have been pertinent for Respondent to provide an explanation of its choice in the disputed domain name, failing which the Panel draws the conclusion that the disputed domain name was registered in bad faith with intent to create an impression of an association with Complainant and its products”. Bouygues v. Chengzhang, Lu Ciagao, WIPO Case No. D2007-1325.

The Panel concurs with the understanding of several other WIPO UDRP panels that the use of a domain name to point to a website that offers sponsored links to complainant’s competitors or other websites is evidence of bad faith. Mudd, LLC v. Unasi, Inc., Mudd products-com-dom, WIPO Case No. D2005-0591; Volvo Trademark Holding AB v. Unais, Inc., WIPO Case No. D2005-0556.

Finally, Complainant states that the disputed domain name is currently inactive after cease and desist letters were sent to Respondent. The consensus view in the WIPO UDRP Panel decisions has been that “[t]he lack of active use of the domain name does not as such prevent a finding of bad faith”, and that a panel must examine such circumstances as “complainant having a well-known trademark, no response to the complaint, concealment of identity and the impossibility of conceiving a good faith use of the domain name”. (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, para. 3.2). See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003; Parfums Christian Dior v. 1 Net Power, Inc., WIPO Case No. D20000-0022; J. Garcнa Carriуn, S.A. v. Marнa Josй Catalбn Frias, WIPO Case No. D2000-0239; Bayer Aktiengesellschaft v. Henrik Monssen, WIPO Case No. D2003-0275; Teachers Insurance and Annuity Association of America v. Wreaks Communications Group, WIPO Case No. D2006-0483; MasterCard International Incorporated v. North Tustin Dental Associates, supra.

The Panel is of the opinion that, under appropriate circumstances, passive holding evidences bad faith use. In the instant case the majority of the facts referred to above are present and, therefore, the Panel concludes that the disputed domain name is also currently being used in bad faith.

Therefore, the Panel finds that the requirement of paragraph 4(a)(iii) of the Policy is met.

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 domain name <electrolux-appliance.com> be transferred to Complainant.

Manoel J. Pereira dos Santos
Sole Panelist

Dated: July 14, 2008