AB Electrolux v. Domain Manager / Data Point Limited
Claim Number: FA1902001829266
Complainant is AB Electrolux (“Complainant”), represented by Cecilia Borgenstam of SILKA Law AB, Sweden. Respondent is Domain Manager / Data Point Limited (“Respondent”), Wyoming, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <electorluxappliances.com>, registered with CommuniGal Communication Ltd.
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.
Steven M. Levy, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 11, 2019; the Forum received payment on February 11, 2019.
On February 14, 2019, CommuniGal Communication Ltd. confirmed by e-mail to the Forum that the <electorluxappliances.com> domain name is registered with CommuniGal Communication Ltd. and that Respondent is the current registrant of the name. CommuniGal Communication Ltd. has verified that Respondent is bound by the CommuniGal Communication Ltd. 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 February 18, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 11, 2019 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@electorluxappliances.com. Also on February 18, 2019, 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 March 13, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Steven M. Levy, Esq. 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
Complainant, AB Electrolux, is one of the world’s leading producers of appliances and equipment for kitchen and cleaning products, including vacuum cleaners, clothes washers/dryers, cooking ovens, and other appliances. Complainant has rights in the ELECTROLUX mark based upon the registration with the United States Patent and Trademark Office (“USPTO”) and its use of the trademark since 1924. Respondent’s <electorluxappliances.com>, created on April 19, 2008, is confusingly similar to Complainant’s mark as Respondent merely transposes the letters “o” and “r” in the mark and adds the generic term “appliances” along with the “.com” generic top-level domain (“gTLD”) to Complainant’s mark.
Respondent does not have rights or legitimate interests in the <electorluxappliances.com> domain name. Respondent is not permitted or licensed to use Complainant’s ELECTROLUX mark and is not commonly known by the disputed domain name. Additionally, Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent uses the <electorluxappliances.com> domain name to divert Internet users to Respondent’s website where Respondent hosts related pay-per-click advertisements, some of which lead to the websites of Complainant’s competitors.
Respondent has registered and uses the <electorluxappliances.com> domain name in bad faith. Respondent is attempting to attract Internet users to its competing click-through website for commercial gain. Additionally, Respondent had actual knowledge or constructive notice of Complainant’s famous ELECTROLUX mark prior to registering the <electorluxappliances.com> domain name.
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;
(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:
(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.”).
Complainant claims rights to the ELECTROLUX mark based upon registration with the USPTO. Registration of a mark with the USPTO sufficiently establishes rights in a mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). Complainant provides copies of its USPTO registrations for the ELECTROLUX mark. Therefore, the Panel finds that Complainant has rights in the ELECTROLUX mark per Policy ¶ 4(a)(i).
Complainant next claims that Respondent’s <electorluxappliances.com> domain name is confusingly similar to Complainant’s ELECTROLUX mark as Respondent merely misspells the mark, and adds a generic modifier and the “.com” gTLD to the mark. Misspelling of a complainant’s mark and adding generic and/or descriptive terms and a gTLD to the mark does not mitigate any confusing similarity between the mark and disputed domain name under Policy ¶ 4(a)(i). See Am. Online, Inc. v. David, FA 104980 (Forum Apr. 10, 2002) (“The misspelling of a famous mark does not diminish the confusingly similar nature between the marks and the disputed domain names.); see also Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Complainant argues Respondent merely transposes the letters “o” and “r” in its ELECTROLUX mark and adds the related generic term “appliances”, and a “.com” gTLD. The Panel agrees with Complainant and finds that the <electorluxappliances.com> does not contain changes that would sufficiently distinguish it from the ELECTROLUX mark for the confusing similarity analysis required by Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Should it succeed in this effort, the burden then shifts to Respondent to show that it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent has no rights or legitimate interests in <electorluxappliances.com> domain name. Specifically Complainant argues Respondent is not licensed or authorized to use the ELECTROLUX mark and is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.). Additionally, lack of authorization to use a complainant’s mark may demonstrate the respondent is not commonly known by the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The WHOIS information of record for the <electorluxappliances.com> domain name identifies Respondent as “Domain Manager / Data Point Limited,” and, in the absence of any Response or other submission from the Respondent, there is no other evidence to suggest that Respondent is known otherwise or that it was authorized to use the ELECTROLUX mark. The Panel therefore finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Additionally, Complainant argues Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Complainant provides evidence that the <electorluxappliances.com> domain name resolves to a website that is offering competing monetized links of the pay-per-click variety. Such links that divert traffic to third-party websites generally do not constitute a bona fide offering of goods or services, or a noncommercial or fair use per Policies ¶¶ 4(c)(i) & (iii). See TGI Friday’s of Minnesota, Inc. v. Tulip Company / Tulip Trading Company, FA 1691369 (Forum Oct. 10, 2016) (”Respondent uses the domain for a parking page displaying various links that consumers are likely to associate with Complainant, but that simply redirect to additional advertisements and links that divert traffic to third-party websites not affiliated with Complainant… The Panel here finds that Respondent is not using the domain name in connection with a bona fide offering of goods or services.”). Complainant provides a screenshot of the disputed domain name’s resolving website which contains links to various advertisements that offer repair services for Complainant’s products. Complainant claims that using the ELECTROLUX mark in the disputed domain name itself strongly and falsely suggests that the links appearing on Respondent’s website are somehow official or otherwise authorized by the Complainant for the purposes of guiding customers to the listed services and repair sites. The Panel agrees with Complainant and holds that advertising unrelated third-party services here does not amount to a bona fide, fair, or legitimate noncommercial use which confers rights or legitimate interests in the domain name per Policy ¶¶ 4(c)(i) or (iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <electorluxappliances.com> domain name be TRANSFERRED from Respondent to Complainant.
Steven M. Levy, Esq., Panelist
Dated: March 14, 2019
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