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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

AB Electrolux v. Unleaded

Case No. D2008-1431

1. The Parties

The Complainant is AB Electrolux, Stockholm, Sweden, represented by Melbourne IT Corporate Brand Services AB, Sweden.

The Respondent is Unleaded, Helms, Dallas, Texas, United States of America.

2. The Domain Names and Registrar

The disputed domain names <electroluxamerica.com>, <electroluxexpert.com>, <electroluxexperts.com>, <electroluxsavings.com> and <originalelectrolux.com> are registered with GoDaddy.com, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the вАЬCenterвАЭ) on September 19, 2008. On September 22, 2008, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the domain names at issue. On September 22, 2008, GoDaddy.com, Inc. 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 вАЬPolicyвАЭ), the Rules for Uniform Domain Name Dispute Resolution Policy (the вАЬRulesвАЭ), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the вАЬSupplemental RulesвАЭ).

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 October 7, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was October 27, 2008. The Respondent did not submit any response. Accordingly, the Center notified the RespondentвАЩs default on October 28, 2008.

The Center appointed Hariram Jayaram as the sole panelist in this matter on November 20, 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

The Complainant is a joint stock company in Sweden producing appliances and equipment for kitchen, cleaning and outdoor use. ELECTROLUX is a trade/service mark used in connection with its products and services. It has also registered the domain name <electrolux.com> and other domain names incorporating the word ELECTROLUX.

The Respondent is the registrant of the disputed domain names <electroluxamerica.com>, <electroluxexpert.com>, <electroluxexperts.com>, <electroluxsavings.com> and <originalelectrolux.com> registered on March 8, 2008.

5. PartiesвАЩ Contentions

A. Complainant

This Complaint is based on the following grounds:

The Complainant, AB Electrolux was founded in 1901 and registered as a Swedish company in 1919. It is the worldвАЩs largest producer of appliances and equipment for kitchen, cleaning and outdoor use (with sales of SEK 105 billion). Electrolux is also one of the largest producers in the world of similar equipment for professional users. The Electrolux Group has two business areas, Indoor Products and Outdoor Products, both of which include products for consumers and professional users. Indoor Products comprise operations in appliances and floor care products, as well as the professional operations in food-service equipment and laundry equipment. Electrolux has leading market positions in white goods and floor-care products in Europe and North America. The trademark ELECTROLUX is the flagship brand for kitchen, cleaning and outdoor appliances. Because of extensive and long-term use on products and services of the Complainant and, in connection therewith, by tremendous costs incurred by the Complainant, in connection with the production, distribution and advertising with respect to the products and services that are marked by the trademark ELECTROLUX, the trademark has acquired the status of a well-known trademark within the areas for appliances and equipment for kitchen, cleaning and outdoor products. As a result, the trademark ELECTROLUX and the products and services designated by this trademark are connected with good reputation and international recognition. The Complainant has registered the trademark ELECTROLUX as a word mark in respect of appliances and equipment for kitchen, cleaning and outdoor products in several classes in more than 150 countries. It has also registered ELECTROLUX as a part of domain names which incorporate about 300 gTLDs and ccTLDs worldwide. One of these is <electrolux.com>. The mark is in possession of distinctiveness per se. The awareness of the trademark ELECTROLUX is considered in the whole Community and US to be significant. The registrant, who is situated in the United States, could not have been unaware of the trademark at the time of registration.

The disputed domain names comprise the word ELECTROLUX which is identical to the trademark ELECTROLUX, registered by the Complainant in many countries, including the United States. The disputed domain names are confusingly similar to the ComplainantвАЩs mark ELECTROLUX. The addition of the different suffixes and prefix is not relevant and will not have any impact on the overall impression of the dominant part of the name, ELECTROLUX, instantly recognizable as a world famous trademark. The Respondent has intentionally chosen a domain name based on a registered trademark in order to generate traffic to the website and through this procedure generate income through sponsored links. The addition of the top-level domain (TLD) вАЬCOMвАЭ does not have any impact on the overall impression of the dominant portion of the domain name and is therefore irrelevant to determine the confusing similarity to the trademark. Anyone who sees the disputed domain names is bound to mistake it for a name related to the Complainant. The likelihood of confusion includes an obvious association with the trademarks of the Complainant. With reference to the reputation of the trademark ELECTROLUX there is a considerable risk that the trade and public will perceive the disputed domain names either as domain names owned by the Complainant or that there is some kind of commercial relation with the Complainant. The trademark also risks being tarnished by being connected to a website. By using the trademark as a dominant part of the disputed domain names, the Respondent exploits the goodwill and the image of the trademark, which may result in dilution and other damage for the ComplainantвАЩs trademark.

The Respondent registered the disputed domain names on March 8, 2008. This date is subsequent to when the vast majority of the ComplainantвАЩs trademarks for ELECTROLUX were registered. Also, the mere registration of a domain name does not give the owner a right or a legitimate interest in respect of the domain name. The Complainant has not found that the Respondent has any registered trademarks or trade names corresponding to the disputed domain names. The Complainant has also not found anything that would suggest that the Respondent has been using ELECTROLUX in any other way that would give them any legitimate rights in the name. Consequently the Respondent may not claim any rights established by common usage. 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 ELECTROLUX. ELECTROLUX is a famous trademark worldwide and an extremely valuable asset. It is highly unlikely that the Respondent would not have known of the ComplainantвАЩs legal rights in the name at the time of the registration. It is rather obvious that it is the fame of the trademark that has motivated the Respondent to register the disputed domain names. The Respondent cannot claim to have been using ELECTROLUX, without being aware of the ComplainantвАЩs rights to it. This, among other facts, proves that the RespondentвАЩs interests cannot have been legitimate. The Respondent is today not using the disputed domain names in connection with a bona fide offering of goods or services. Instead the Respondent has intentionally chosen domain names based on a registered trademark in order to generate traffic to the website and through this procedure generate income through sponsored links. By doing this, Respondent is misleading Internet users to a commercial website and consequently, the Respondent is tarnishing the trademark ELECTROLUX. No evidence has been found that the Respondent uses the name as a company name or has any other legal right in the name ELECTROLUX.

The trademark ELECTROLUX belonging to the Complainant has the status of a well-known and reputed trademark with a substantial and widespread reputation throughout the whole Community and throughout the world. The awareness of the trademark ELECTROLUX is considered, in the whole Community in general, to be significant and substantial. The number of third party domain name registrations comprising the trademark ELECTROLUX in combination with other words has skyrocketed the last years. The considerable value and goodwill of the mark ELECTROLUX is most likely, a large contribution to this and also what made the Respondent register the disputed domain names. In addition to the disputed domain names, the Respondent has registered additionally at least 13 domain names, incorporating the trademark ELECTROLUX. The Respondent in this case has shown a clear pattern of conduct and has pointed all of the registered domain names to websites containing sponsored links. The Complainant first became aware of the RespondentвАЩs registration in April 2008. It first sent a cease and desist letter to the Respondent on June 9, 2008. The Complainant advised the Respondent that the unauthorized use of the ELECTROLUX trademark within the disputed domain names violated the ComplainantвАЩs rights in the trademark ELECTROLUX. The Complainant requested the immediate transfer of the domain names and offered compensation for the expenses of registration and renewal fees (not exceeding out of pocket expenses). The Respondent replied on June 23, stating that the Respondent would not abide by the request to transfer the disputed domain names. The Respondent also stated that it would make sure that the pointing to websites with sponsored links ceased as soon as possible. This did however not happen and the disputed domain names are still pointing to websites with sponsored links. The Complainant contacted the Respondent again, restating the request to have the domain names transferred owing to infringement of trademark rights. The Respondent still refused to transfer the disputed domain names and encouraged the Complainant to file a complaint under the UDRP instead. The Respondent is using the disputed domain names to intentionally attempt to attract, for commercial gain, Internet users to its websites, by creating a likelihood of confusion with the ComplainantвАЩs mark as to the source, sponsorship, affiliation or endorsement of its websites. Whether or not the Respondent has influenced what links should be included on the sites is irrelevant for the finding of bad faith in this case. It is also without relevance whether or not the Respondent itself is actually getting revenue from this page.

B. Respondent

The Respondent did not submit a response to the Complaint.

6. Discussion and Findings

A. Identical or Confusingly Similar

The disputed domain names are <electroluxamerica.com>, <electroluxexpert.com>, <electroluxexperts.com>, <electroluxsavings.com> and <originalelectrolux.com> and the ComplainantвАЩs trade/service mark is ELECTROLUX. The only difference between the disputed domain names and the ComplainantвАЩs trade/service mark is that there are additions of a prefix and some suffixes to the word ELECTROLUX in the disputed domain names. The prefix and suffixes such as вАШoriginalвАЩ,вАЩexpertвАЩ, вАШexpertsвАЩ and вАШsavingsвАЩ are descriptive in nature. They do not eliminate the element of confusing similarity between the disputed domain names and the trade mark. In PepsiCo, Inc. v. PEPSI, SRL (a/k/a P.E.P.S.I) and EMS COMPUTER INDUSTRY (a/k/a EMS), WIPO Case No. D2003-0696, the Panel held that:

вАЬthe disputed domain names are confusingly similar to ComplainantвАЩs trademarks вАЬPEPSIвАЭ. All of the contested domain names fully incorporate the trademark вАЬPEPSIвАЭ, which is a distinctive mark. The mere addition of common terms such as вАЬsportsвАЭ, вАЬbasketballвАЭ, вАЬsoccerвАЭ, вАЬvolleyballвАЭ, вАЬrugbyвАЭ and the like to the вАЬPEPSIвАЭ mark, does not change the overall impression of the designations as being domain names connected to the Complainant.вАЭ

This Panel agrees with the observation made in the above decision and holds the disputed domain names to be confusingly similar to the ComplainantвАЩs trade mark ELECTROLUX.

The Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.

B. Rights or Legitimate Interests

The Complainant has made several allegations against the Respondent which suffice to make a prima facie case that the latter does not have rights or legitimate interests in the disputed domain names.

The Complainant alleges that the disputed domain names were registered after the registration of the ComplainantвАЩs trade/service mark in several classes and in many countries and the Respondent was aware of the existence of this mark prior to the registration of the disputed domain names. The Respondent does not have a trade/service mark corresponding to the disputed domain names. The Complainant has not given a license to the Respondent to use its trade/service mark ELECTORLUX which is a well known mark. There is no legitimate use of the disputed domain names. They merely connect to websites with sponsored links and the aim to mislead Internet users to commercial websites and tarnish the trade mark ELECTROLUX.

All these allegations of the Complainant have gone unchallenged by the Respondent who has chosen not to submit a response.

The Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

The Respondent has registered several domain names incorporating the trademark of the Complainant. This suggests a pattern of conduct as noted in Telstra Corporation Limited v. Ozurls, WIPO Case No. D2001-0046, where the Panel said:

вАЬFifteen domain names that involve the ComplainantвАЩs mark and a series of services, products, geographical descriptors, or generic words obviously involve a pattern of conduct directed against the Complainant.вАЭ

The Complainant alleges (quite possibly on the present record) that the Respondent is using the disputed domain names to intentionally attempt to attract, for commercial gain, Internet users to its websites, by creating a likelihood of confusion with the ComplainantвАЩs mark as to the source, sponsorship, affiliation or endorsement of its websites.

These allegations have not been challenged by the Respondent. The ComplainantвАЩs ELECTROLUX trademark is well-known and has been in use for many years. The Panel has little hesitation, in the circumstances, in finding that the disputed domain names were registered and are being used in bad faith.

This Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(iii) of the Policy.

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 names, <electroluxamerica.com>, <electroluxexpert.com>, <electroluxexperts.com>, <electroluxsavings.com> and <originalelectrolux.com> be transferred to the Complainant.


Hariram Jayaram
Sole Panelist

Dated: December 4, 2008

 

»сточник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-1431.html

 

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