AB Electrolux v. AMR AAMER
Claim Number: FA1710001752194
Complainant is AB Electrolux (“Complainant”), represented by Cecilia Borgenstam of SILKA Law AB, Sweden. Respondent is AMR AAMER (“Respondent”), Egypt.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <aegmaintenance.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 4, 2017; the Forum received payment on October 4, 2017.
On October 5, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <aegmaintenance.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 October 5, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 25, 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@aegmaintenance.com. Also on October 5, 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 October 27, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <aegmaintenance.com> domain name is confusingly similar to Complainant’s AEG mark.
2. Respondent does not have any rights or legitimate interests in the <aegmaintenance.com> domain name.
3. Respondent registered and uses the <aegmaintenance.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant uses the AEG mark for household products and services. Complainant holds a registration for the AEG mark with the World Intellectual Property Office (“WIPO) under the Madrid Protocol (Reg. No. 149827, registered Oct. 26, 1950).
Respondent registered the <aegmaintenance.com> domain name on January 13, 2016, and uses it to resolve to a website attempting to pass itself off as Complainant, offering competing maintenance services for Complainant’s products under its AEG mark and 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.”).
The Panel finds that Complainant’s registration of the AEG mark under the Madrid Protocol are sufficient to show rights in the mark pursuant to Policy ¶ 4(a)(i). To demonstrate rights in a mark for the purposes of Policy ¶ 4(a)(i), “[i]t is sufficient for a Complainant to establish that, at the time of filing the Complaint, it has some rights in a trademark anywhere in the world.” Anheuser-Busch, Incorporated v. Ryan Forrester a/k/a TheForrester.com a/k/a R H Busch Botanicals, FA 726106 (Forum July 21, 2006); see also Vapiano AG v. Sex-Escort, FA 829126 (Forum Dec. 13, 2006) (“Complainant has registered the VAPIANO mark…with the Madrid Protocol for the International Registration of Marks. These trademark registrations sufficiently demonstrate Complainant’s rights in the mark pursuant to Policy ¶4(a)(i).”).
Respondent’s <aegmaintenance.com> domain name fully incorporates the AEG mark, and adds the generic, descriptive term “maintenance” and the “.com” gTLD. A confusing similarity exists where a disputed domain name contains complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and a top-level domain. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016); see also Morgan Stanley v. Eugene Sykorsky / private person, FA 1651901 (Forum Jan. 19, 2016). The Panel finds that Respondent’s <aegmaintenance.com> domain name is confusingly similar to Complainant’s AEG mark.
The Panel finds that Complainant has satisfied Policy ¶4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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 (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); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first 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, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent does not have rights or legitimate interests in <aegmaintenance.com>, and is not commonly known by the disputed domain name. The WHOIS information associated with the disputed domain name identifies Respondent as “AMR AAMER.” The Panel finds that Respondent is not commonly known by the disputed domain name where there is no evidence in the record, including the WHOIS information, suggesting that the respondent is commonly known by that name. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006). Therefore, “[g]iven the WHOIS contact information for the disputed domain [name],” the Panel may “infer that Respondent . . . is not commonly known by the [disputed domain name] in any derivation.” Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Forum Nov. 17, 2003).
Complainant has not authorized or licensed Respondent to use the AEG mark in any regard, nor is Respondent affiliated with Complainant. Complainant contends that Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the disputed domain name. Complainant demonstrates that Respondent’s <aegmaintenance.com> resolves to a website attempting to pass itself off as Complainant, offering competing maintenance services for Complainant’s products under its AEG mark and logo. The Panel finds that Respondent’s attempts to pass itself off as Complainant is a blatant unauthorized use of Complainant’s AEG mark, and shows a lack of rights or legitimate interests in the <aegmaintenance.com> domain name under Policy ¶¶ 4(c)(i) & (iii). See Crow v. LOVEARTH.net, FA 203208 (Forum Nov. 28, 2003) (“It is neither a bona fide offerings [sic] of goods or services, nor an example of a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) & (iii) when the holder of a domain name, confusingly similar to a registered mark, attempts to profit by passing itself off as Complainant.”); see also Nokia Corp. v. Eagle, FA 1125685 (Forum Feb. 7, 2008) (finding the respondent’s use of the disputed domain name to pass itself off as the complainant in order to advertise and sell unauthorized products of the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)).
The Panel finds that Complainant has satisfied Policy ¶4(a)(ii).
Complainant argues that Respondent uses the <aegmaintenance.com> domain name in an attempt to pass itself off as Complainant and attract Internet users to Respondent’s website for commercial gain, creating a likelihood of confusion that Respondent is affiliated with Complainant. The Panel agrees and finds that this use constitutes bad faith under ¶ 4(b)(iv). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003). See also Kmart v. Khan, FA 127708 (Forum Nov. 22, 2002) (if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv).)
Complainant also contends that in light of the fame, notoriety, and long-standing use of Complainant's AEG mark, it is inconceivable that Respondent could have registered the disputed domain name without actual and/or constructive knowledge of Complainant's rights in the mark. The Panel agrees that Respondent had actual knowledge of Complainant’s rights in the mark, noting Respondent’s direct competition with Complainant, and finds bad faith under Policy ¶ 4(a)(iii). See Victoria’s Secret Stores Brand Mgmt., Inc. v. Michael Bach, FA 1426668 (Forum March 2, 2012) (“Although Complainant has not submitted evidence indicating actual knowledge by Respondent of its rights in the trademark, the Panel finds that, due to the fame of Complainant’s [VICTORIA’S SECRET] mark, Respondent had actual notice at the time of the domain name registration and therefore registered the domain name in bad faith under Policy ¶ 4(a)(iii).”).
The Panel finds that Complainant has satisfied Policy ¶4(a)(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 <aegmaintenance.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: October 30, 2017
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