Aktiebolaget Electrolux v. Electroluxappliances c/o Solomon Roth
Claim Number: FA0708001068820
Complainant is Aktiebolaget Electrolux (“Complainant”), represented by Deborah
A. Wilcox, of BAKER & HOSTETLER LLP, 3200
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <electroluxappliances.com>, registered with Register.com, Inc.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 27, 2007; the National Arbitration Forum received a hard copy of the Complaint on August 29, 2007.
On September 4, 2007, Register.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <electroluxappliances.com> domain name is registered with Register.com, Inc. and that Respondent is the current registrant of the name. Register.com, Inc. has verified that Respondent is bound by the Register.com, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On September 7, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 27, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to email@example.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 5, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.), as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <electroluxappliances.com> domain name is confusingly similar to Complainant’s ELECTROLUX mark.
2. Respondent does not have any rights or legitimate interests in the <electroluxappliances.com> domain name.
3. Respondent registered and used the <electroluxappliances.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Aktiebolaget Electrolux, is a Swedish company, formed in 1919, that designs, markets, and sells vacuum cleaners and other household and professional appliances throughout the world. Besides vacuum cleaners, for which it is most well-known, Complainant’s products also include refrigerators, dishwashers, and washing machines. Complainant has offered its products under the ELECTROLUX mark, since its inception and currently holds several trademark registrations for the mark, including a registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 195,691 issued March 3, 1925). Complainant is a global leader in its industry and does business in over 150 countries worldwide.
Respondent registered the <electroluxappliances.com> domain name on December 31, 2000. Respondent is not currently making any use of the disputed domain name.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
The Panel finds that Complainant’s longstanding use of the
ELECTROLUX mark and its registration of the mark with the USPTO sufficiently
establishes its rights in the mark pursuant to Policy ¶ 4(a)(i). See
The <electroluxappliances.com> domain name incorporates Complainant’s ELECTROLUX mark in its entirety, and merely adds the generic term “appliances” onto the mark, which has an obvious relation to Complainant’s business. The addition of a generic or descriptive term to a mark does not negate any confusing similarity between a disputed domain name and a corresponding mark. Moreover, the inclusion of the generic top-level domain “.com” in the disputed domain name is irrelevant for the purposes of Policy ¶ 4(a)(i), because a top-level domain is a required element of all domain names. Thus, the Panel finds that Respondent’s <electroluxappliances.com> domain name is confusingly similar to Complainant’s ELECTROLUX mark pursuant to Policy ¶ 4(a)(i). See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business); see also Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that the <hoylecasino.net> domain name is confusingly similar to the complainant’s HOYLE mark, and that the addition of “casino,” a generic word describing the type of business in which the complainant is engaged, does not take the disputed domain name out of the realm of confusing similarity).
The Panel thus finds that Policy ¶ 4(a)(i) has been satisfied.
Once Complainant makes a prima facie case to prove that Respondent lacks rights and legitimate interests in the <electroluxappliances.com> domain name, the burden shifts to Respondent to show that it does have rights or legitimate interests. In the present case, the Panel finds that Respondent has established a prima facie case under the Policy. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent’s failure to answer the Complaint allows the Panel to presume that Respondent lacks rights and legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence); see also Eroski, So. Coop. v. Getdomains Ishowflat Ltd., D2003-0209 (WIPO July 28, 2003) (“It can be inferred that by defaulting Respondent showed nothing else but an absolute lack of interest on the domain name.”). However, the Panel will still examine the record to determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c).
Although Respondent’s WHOIS information indicates that Respondent is “Electroluxappliances c/o Solomon Roth,” there is nothing further in the record to suggest that Respondent is commonly known by the <electroluxappliances.com> domain name. In addition, Respondent has not been authorized or licensed by Complainant to use its ELECTROLUX mark for any purpose. Therefore, the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Xerox Corp. v. Anti-Globalization Domains, FA 210224 (Nat. Arb. Forum Dec. 22, 2003) (“[I]t would be difficult for Respondent to demonstrate that it had rights or legitimate interests in the domain name given Complainant's long and substantial use of its unique and famous XEROX mark.”); see also City News & Video v. Citynewsandvideo, FA 244789 (Nat. Arb. Forum May 5, 2004) (“Although Respondent’s WHOIS information lists its name as ‘citynewsandvideo,’ there is no evidence before the Panel to indicate that Respondent is, in fact, commonly known by the disputed domain name <citynewsandvideo.com> pursuant to Policy ¶ 4(c)(ii).”).
Respondent is not currently using the <electroluxappliances.com> domain name for any purpose. This inactivity, and lack of demonstrable preparations to use the disputed domain name, is further evidence that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). See Vestel Elektronik Sanayi ve Ticaret AS v. Kahveci, D2000-1244 (WIPO Nov. 11, 2000) (“Merely registering the domain name is not sufficient to establish rights or legitimate interests for purposes of paragraph 4(a)(ii) of the Policy.”); see also Nike, Inc. v. Crystal Int’l, D2001-0102 (WIPO Mar. 19, 2001) (finding no rights or legitimate interests where the respondent made no use of the infringing domain names).
The Panel thus finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s failure to use the <electroluxappliances.com> domain name, and lack of demonstrable preparations to use the disputed domain name, further indicates that Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the respondent made no use of the domain name in question and there are no other indications that the respondent could have registered and used the domain name in question for any non-infringing purpose); see also CBS Broad., Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (finding that given the long use and fame of the complainant’s mark, the respondent’s conduct is evidence of bad faith).
The Panel thus finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <electroluxappliances.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: October 16, 2007
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