AB Electrolux v. Ali Movahedi / www.ghorfe24.com
Claim Number: FA1710001752295
Complainant is AB Electrolux (“Complainant”), represented by Cecilia Borgenstam of SILKA Law AB, Sweden. Respondent is Ali Movahedi / www.ghorfe24.com (“Respondent”), United Arab Emirates.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <aegsanat.com>, registered with Dynadot, LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 5, 2017; the Forum received payment on October 5, 2017.
On October 9, 2017, Dynadot, LLC confirmed by e-mail to the Forum that the <aegsanat.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On October 16, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 6, 2017 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@aegsanat.com. Also on October 16, 2017, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On November 8, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant makes and markets kitchen appliances and cleaning-related products and services.
Complainant acquired the household product company AEG and rights to the AEG mark in 2005.
Complainant holds a registration for the AEG mark, which is on file with the United Arab Emirates (“UAE”) Ministry of Economy Trade Marks Department as Registry No. 159311, registered November 3, 2011).
Respondent registered the domain name <aegsanat.com> on August 13, 2016.
The domain name is confusingly similar to Complainant’s AEG mark because it incorporates the AEG mark in its entirety, adding the generic term “sanat,” which Complainant is reliably advised is a synonym for “parts” in Farsi, plus the generic top-level domain (“gTLD”) “.com.”
Respondent has not been commonly known by the domain name.
Respondent has not received any license or other authorization from Complainant to use the AEG mark.
The website resolving from the domain name prominently displays the AEG logo, together with an array of images of Complainant’s products, from which site Respondent presumably, and without authorization from Complainant, sells for profit spare parts for Complainant’s products.
Respondent has no rights to or legitimate interests in the domain name.
Respondent uses the domain name to attract, for commercial gain, Internet users to its resolving website by creating a likelihood of confusion with Complainant’s trademark as to the source, sponsorship, affiliation or endorsement of it.
Respondent registered the domain name with knowledge of Complainant and its rights in the AEG mark.
Respondent registered and uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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."
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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept all reasonable allegations and inferences set out in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
Complainant has rights in the AEG trademark sufficient for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with the United Arab Emirates Ministry of Economy Trade Marks Department. See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA 1625332 (Forum July 17, 2015), finding that:
Registration of a mark with a governmental [trademark] authority … is sufficient to establish rights in the mark for purposes of Policy ¶4(a)(i).
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <aegsanat.com> domain name is confusingly similar to Complainant’s AEG trademark. The domain name incorporates the mark in its entirety, adding only the generic term “sanat,” which, Complainant offers, is a synonym for “parts” in Farsi, and thus relates to an aspect of Complainant’s business, plus the generic Top Level Domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See, for example, Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum January 21, 2016) (finding confusing similarity under Policy ¶ 4(a)(i), where a disputed domain name contained a UDRP complainant’s entire mark and differed only by the addition of a generic phrase and a gTLD, the differences between the domain name and its contained trademark being insufficient to differentiate one from the other for the purposes of the Policy). See also Kohler Co. v. Curley, FA 890812 (Forum March 5, 2007) (finding confusing similarity where the domain name <kohlerbaths.com> contained a UDRP complainant’s entire mark, merely adding “the descriptive term ‘baths,’ which is an obvious allusion to complainant’s business.”).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <aegsanat.com> domain name, and that Complainant has not authorized Respondent to use the AEG mark. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “ali movahedi,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the ambit of ¶ 4(c)(ii). See, for example, Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017).
We next observe that Complainant asserts, without objection from Respondent, that Respondent fails to employ the <aegsanat.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use, in that Respondent evidently attempts, without authorization from Complainant, to use the domain name and its resolving website to sell for profit spare parts for Complainant’s products under its mark. This use of the domain name is neither a bona fide offering of goods or services by means of the domain name under policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of it under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy. See Fadal Engineering, LLC v. DANIEL STRIZICH, INDEPENDENT TECHNOLOGY SERVICE INC, FA 1581942 (Forum November 13, 2014) (finding that a respondent’s use of a disputed domain name to sell products related to a UDRP complainant without authorization “does not amount to a bona fide offering of goods or services under policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Therefore, the Panel finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent uses the <aegsanat.com> domain name, which we have found to be confusingly similar to Complainant’s AEG trademark, to attempt to profit from the confusion thus caused among internet users as to the possibility of Complainant’s affiliation with the domain name and its resolving website. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in registering and using the domain name. See, for example, Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003).
We are also convinced by the evidence that Respondent registered the <aegsanat.com> domain name with knowledge of Complainant and its rights to the AEG mark. Under Policy ¶ 4(a)(iii), this further demonstrates Respondent’s bad faith in registering the domain name. See, for example, Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum February 6, 2014), finding bad faith registration of a domain name “through the name used for the domain and the use made of it.”
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <aegsanat.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: November 17, 2017
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