AB Electrolux v. mostafa memo
Claim Number: FA1809001809214
Complainant is AB Electrolux (“Complainant”), represented by Cecilia Borgenstam of SILKA Law AB, Sweden. Respondent is mostafa memo (“Respondent”), Egypt.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <zanussiservice.com> (‘the Domain Name’), registered with GoDaddy.com, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 27, 2018; the Forum received payment on September 27, 2018.
On September 27, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <zanussiservice.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 September 27, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 17, 2018 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@zanussiservice.com. Also on September 27, 2018, 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 October 19, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne as Panelist.
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 any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
The Complainant is the owner through its wholly owned subsidiary of the mark ZANUSSI registered since 2014 in the EU extended by International registration to Egypt the next year. The Arabic version of ZANUSSI has also been registered by the Complainant’s subsidiary in Egypt since 2011. The ZANUSSI brand was founded in 1916 and the Complainant acquired its manufacturer in 1984. The Complainant owns Zanussi.com.
The Domain Name registered in 2017 incorporates the Complainant’s ZANUSSI mark in its entirety adding only the generic word ‘service’ and the gTLD .com which do not differentiate the Domain Name from the Complainant’s mark.
Respondent is not commonly known by the Domain Name and the Complainant has not authorized the Respondent to use the Complainant’s mark. Respondent is using the Domain Name to attract Internet users to their web site where they offer repair and maintenance services for ZANUSSI products. The incorporation of the Complainant’s mark in the Domain Name and the frequent mention of it in the web site and the use of the Complainant’s ZANUSSI logo strongly suggests there is a connection with the Complainant. The Respondent explicitly claims to be authorized by the Complainant creating a misleading impression that there is an official relationship between the Complainant and the Respondent which is not a bona fide offering of goods or services or a legitimate noncommercial fair use. The Respondent does not have rights or legitimate interests in the Domain Name.
The Respondent takes advantage of the ZANUSSI trade mark by intentionally attempting to attract visitors to the Respondent’s web site by creating a likelihood of confusion with the Complainant’s mark as to the source or affiliation of the Respondent’s web site or products or services on it exacerbated by use of the Complainant’s logo disrupting the Complainant’s business. Respondent did not reply to the Complainant’s cease and desist letter. The Domain Name has been registered and used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner through its wholly owned subsidiary of the mark ZANUSSI registered since 2014 in the EU extended by International registration to Egypt the next year. The Arabic version of ZANUSSI has also been registered by the Complainant’s subsidiary in Egypt since 2011. The ZANUSSI brand was founded in 1916 and the Complainant acquired its manufacturer in 1984. The Complainant owns Zanussi.com.
The Domain Name registered in 2017 has been used to offer repair and maintenance for the Complainant’s products under the Complainant’s ZANUSSI mark and using its ZANUSSI logo.
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:
(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.
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(f), 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 (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.”).
Identical or Confusingly Similar
The Domain Name consists of the Complainant's mark ZANUSSI (which is registered, inter alia, in Egypt for white goods since at least 2011 in Arabic and 2014 in English) the generic word ‘service’ and the gTLD .com.
Previous panels have found confusing similarity when a respondent merely adds generic terms to a sign confusingly similar to the Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks).
The gTLD .com does not serve to distinguish a Domain Name from a Complainant’s mark. See Red Hat Inc v. Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s ZANUSSI registered mark.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorized the use of its marks. There is no evidence or reason to suggest the Respondent is commonly known by the Domain Name.
The use made of the Domain Name is commercial so cannot be noncommercial or legitimate fair use.
The web site attached to the Domain Name offers repair services referencing the Complainant in a way in which it may be thought to be connected with the Complainant including use of the Complainant’s logo and claiming to be authorized by the Complainant. It does not make it clear that there is no commercial connection with the Complainant. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the panelist the use made of the Domain Name in relation to the Respondent’s site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it uses the Complainant’s logo prominently without permission and claims to be authorized. The fact that the Complainant is referenced several times including use of its logo shows that the Respondent is aware of the Complainant and its business. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the web site likely to disrupt the business of the Complainant. See Univ of Houston Sys v. Salvia Corp., FA 637920 (Forum Mar 21, 2006).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iv) and 4 (b)(iii) and there is no need to consider any further alleged grounds of bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <zanussiservice.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
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