AB Electrolux v bordin sribenjarat, thaiblogger
Claim Number: FA1410001585875
Complainant is AB Electrolux (“Complainant”), represented by Helena Myrin of CSC Digital Brand Services AB, Sweden. Respondent is bordin sribenjarat, thaiblogger (“Respondent”), Thailand.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <electroluxmicrowave.us> and <electroluxrange.us>, registered with GoDaddy.com, LLC.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 21, 2014; the National Arbitration Forum received payment on October 21, 2014.
On October 22, 2014, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <electroluxmicrowave.us> and <electroluxrange.us> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 the usTLD Policy (the “Policy”).
On October 23, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 12, 2014 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@electroluxmicrowave.us, postmaster@electroluxrange.us. Also on October 23, 2014, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 19, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson 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 the usTLD 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 usTLD Policy, usTLD 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 names be transferred from Respondent to Complainant.
A. Complainant
1. Complainant uses ELECTROLUX to promote its home goods and appliance manufacturing and resale business. The mark has been registered in many countries, including Respondent’s native Thailand (e.g., Reg. No. TM9463 [no registration date provided]) and the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 2,714,007 registered May 6, 2003). The <electroluxmicrowave.us> and <electroluxrange.us> domain names are confusingly similar to Complainant’s mark in that they merely reference types of products that users might associate with the ELECTROLUX mark, along with the country-code top-level domain “.us.”
2. Respondent has no rights or legitimate interests in the <electroluxmicrowave.us> and <electroluxrange.us> domain names. First, Respondent has no trademark rights in these names by way of common usage. Further, Respondent does not appear to be commonly known by these domain names. The only use for the domain names is to describe Complainant’s goods and send users to Amazon.com websites wherein unverified goods purporting to be ELECTROLUX goods are sold.
3. Respondent registered or uses the domain names in bad faith. Respondent is intentionally linking users who visit the domain names to Amazon.com-associated websites so that Respondent can accrue referral and affiliate revenues—however, Respondent is ultimately free to control and use these domain names in any way it wishes, without Complainant’s oversight.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is AB Electrolux of Stockholm, Sweden. Complainant has registered the mark ELECTROLUX domestically and internationally including in the USA and Thailand. Complainant is a world leading producer of appliances for kitchen and cleaning and was established as a company in 1901. Complainant has continuously used the ELECTROLUX mark in connection with its kitchen appliances since at least as early as 2003. Complainant has also registered approximately 700 domain names including many country codes with the ELECTROLUX mark as the second level domain.
Respondent is indicated to be bordin sribenjarat, thaiblogger of Songkhla, Thailand. Respondent’s registrar’s address is listed as Scottsdale, AZ, USA. The disputed domain names were both registered on or about March 10, 2014.
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 or 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(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.”).
Complainant uses ELECTROLUX to promote its home goods and appliance manufacturing and resale business. The mark has been registered in many countries, including Respondent’s native Thailand (e.g., Reg. No. TM9463 [no registration date provided]) and the USPTO (e.g., Reg. No. 2,714,007 registered May 6, 2003). The Panel finds that these registrations are illustrative of Complainant’s Policy ¶ 4(a)(i) rights in the trademark. See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (finding that the complainant had established rights in the GOOGLE mark through its holding of numerous trademark registrations around the world).
Complainant argues that the <electroluxmicrowave.us> and <electroluxrange.us> domain names are confusingly similar to Complainant’s mark in that they merely reference types of products that users might associate with the ELECTROLUX mark, along with the country-code top-level domain “.us.” The Panel finds that the country code “.us” fails to provide distinction in this case. See CDW Computer Ctrs., Inc. v. The Joy Co., FA 114463 (Nat. Arb. Forum July 25, 2002) (finding that the addition of the ccTLD “.us” is inconsequential and does not defeat a claim of confusing similarity). The Panel also notes that Respondent enhanced the confusing similarity of the domain names by adding terms that related to goods sold under the ELECTROLUX mark, such as “range” or “microwave.” See Experian Info. Solutions, Inc. v. Credit Research, Inc., D2002-0095 (WIPO May 7, 2002) (finding that several domain names incorporating the complainant’s entire EXPERIAN mark and merely adding the term “credit” were confusingly similar to the complainant’s mark). The Panel here finds Policy ¶ 4(a)(i) confusing similarity with respect to both of the disputed domain names.
The Complainant has proven this element.
The Panel recognizes that 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), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). The Complainant has met this burden.
Complainant argues that Respondent has no trademark rights in these names by way of common usage. The Panel agrees that Respondent has not shown any evidence suggesting that it has a trade or service mark identical to either of the <electroluxmicrowave.us> and <electroluxrange.us> domain names, or any rights based on Respondent’s use of the disputed domains. For those reasons the Panel finds that Respondent has no rights under Policy ¶ 4(c)(i). See Pepsico, Inc. v Becky, FA 117014 (Nat. Arb. Forum Sept. 3, 2002) (holding that because the respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶ 4(c)(i)).
Complainant claims that Respondent does not appear to be commonly known by these domain names. The Panel notes that the WHOIS information lists “bordin sribenjarat, thaiblogger” as the registrant of record for both domain names. Respondent provides absolutely no evidence to suggest that Respondent is “commonly known as” the subject domain names under Policy ¶ 4(c)(iii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
Complainant claims that the only use for the domain names is to describe Complainant’s goods and send users to Amazon.com websites wherein unverified goods purporting to be ELECTROLUX goods are sold. Complainant provides exhibits indicating the domain names resolve to pages describing ELECTROLUX products and further sending users to Amazon.com webpages promoting the sale of goods. The Panel finds Respondent’s use of the domain names in a manner to misdirect consumers indicates that Respondent has shown no Policy ¶ 4(c)(ii) bona fide offering, or Policy ¶ 4(c)(iv) legitimate noncommercial or fair use for the domain names. See Nike, Inc. v. Dias, FA 135016 (Nat. Arb. Forum Jan. 7, 2002) (finding no bona fide offering of goods or services where the respondent used the complainant’s mark without authorization to attract Internet users to its website, which offered both the complainant’s products and those of the complainant’s competitors).
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
Because the Respondent has not provided a response to this action the Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
The Complainant has proven this element.
Complainant alleges that Respondent is intentionally linking users who visit the domain names to Amazon.com-associated websites so that Respondent can accrue referral and affiliate revenues—however, Respondent is ultimately free to control and use these domain names in any way it wishes, without Complainant’s oversight. Complainant effectively argues that Respondent uses a guise of legitimacy in promoting Complainant’s goods, but does so in a way that allows Respondent to collect referral fees and make use of the ELECTROLUX mark without license or authority, and in manners that could change without Complainant’s oversight. The Panel again acknowledge the use of the domain names to “discuss” Complainant’s goods, whilst sending users to Amazon.com-backed websites. The Panel finds that Respondent’s use of both domain names falls within Policy ¶ 4(b)(iv) bad faith use and registration, as Respondent capitalizes on the likelihood Internet users will assume a website describing ELECTROLUX products is lawfully associated with the mark, and the users will click on any hyperlinks they see under the belief that those links were placed by their by the same entity that is the source or origin of the ELECTROLUX mark. See, e.g., Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting).
The Complainant has proven this element.
Because the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <electroluxmicrowave.us> and <electroluxrange.us> domain names be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: December 3, 2014
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