AB Electrolux v. rongxian mu / murongxian
Claim Number: FA1806001790580
Complainant is AB Electrolux (“Complainant”), represented by Cecilia Borgenstam, of SILKA Law AB, Sweden. Respondent is rongxian mu / murongxian (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <eleictrolux.com>, registered with Domain Collage, 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 June 7, 2018; the Forum received payment on June 7, 2018.
On June 7, 2018, Domain Collage, LLC confirmed by e-mail to the Forum that the <eleictrolux.com> domain name is registered with Domain Collage, LLC and that Respondent is the current registrant of the name. Domain Collage, LLC has verified that Respondent is bound by the Domain Collage, 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 June 13, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 3, 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@eleictrolux.com. Also on June 13, 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 July 6, 2018, 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 is a leading producer of appliances and equipment for kitchen, cleaning and floor care.
Complainant uses the ELECTROLUX mark in connection with the marketing of its goods and services.
Complainant holds a registration for the ELECTROLUX mark under the Madrid International Trademark Protocol, which bears Registry No. 836605 and was registered on March 17, 2004.
Respondent registered the domain name <eleictrolux.com> on February 8, 2018.
The domain name is confusingly similar to Complainant’s ELECTROLUX mark.
Respondent has not been commonly known by the domain name.
Complainant has not granted Respondent permission to use the ELECTROLUX mark for any purpose.
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 is using the <eleictrolux.com> domain name to offer a gaming service that is unrelated to Complainant’s business.
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 the website resolving from it by creating a likelihood of confusion with Complainant’s trademark as to the source, sponsorship, affiliation or endorsement of it and its resolving website.
Respondent knew of Complainant’s mark before registering the domain name.
Respondent registered and is using 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 has been 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 to 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 as true all reasonable allegations and inferences set out in the Complaint 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 ELECTROLUX mark sufficient for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with an international trademark authority the Madrid Protocol for the International Registration of Marks. See Vapiano AG v. Sex-Escort, FA 829126 (Forum December 13, 2006):
Complainant has registered the … 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).
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <eleictrolux.com> domain name is confusingly similar to Complainant’s ELECTROLUX mark. The domain name contains the mark in its entirety, with only the addition of the letter “i” in between the “e” and “c,” 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 Bank of America Corporation v. Above.com Domain Privacy, FA 1629452 (Forum August 18, 2015) (finding confusing similarity between the BANK OF AMERICA mark of a UDRP complainant and the domain name <blankofamerica.com> because the domain name contained the entire mark and merely added the gTLD ‘.com’ and the letter ‘l’ to create a common misspelling of the word ‘bank’). See also Trip Network Inc. v. Alviera, FA 914943 (Forum March 27, 2007) (concluding that the affixation of a gTLD to the mark of another in creating a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). This is because every domain name requires a gTLD.
Under Policy 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the <eleictrolux.com> 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) (i)-(iii), 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<eleictrolux.com> domain name, and that Complainant has not authorized Respondent to use the ELECTROLUX mark for any purpose. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “rongxian mu / murongxian,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA 626022 (Forum July 27, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by the <chevron-europe.com> domain name where the relevant WHOIS information identified its registrant only as “Fred Wallace.” See also Navistar International Corporation v. N Rahmany, FA 620789 (Forum June 8, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by a disputed domain name where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name).
We next observe that Complainant asserts, without objection from Respondent, that Respondent uses the <eleictrolux.com> domain name to offer a gaming service that is unrelated to Complainant’s business. This employment of the domain name, which we may comfortably presume it does for commercial gain, 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, for example, Haru Holding Corporation v. AI Matusita, FA 1679867 (Forum August 11, 2016) (finding that “unrelated use [of a disputed domain name] by a respondent consists of neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use”).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent uses the <eleictrolux.com> domain name, which we have found to be confusingly similar to Complainant’s ELECTROLUX mark, to profit financially from the confusion thus caused among Internet users as to the possibility of Complainant's affiliation with the domain name. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in registering and using the domain name. See X Tumblr, Inc. v. Ailing Liu, FA1402001543807 (Forum March 24, 2014):
Bad faith use and registration exists under Policy ¶ 4(b)(iv) where a respondent uses a confusingly similar domain name to resolve to a website featuring links and advertisements unrelated to complainant’s business and respondent is likely collecting fees.
We are also convinced by the evidence that Respondent knew of Complainant and its rights in the ELECTROLUX mark when it registered the <eleictrolux.com> domain name. This too demonstrates Respondent’s bad faith in registering the domain name. See Google Inc. v. Ahmed Humood, FA1411001591796 (Forum January 7, 2015), finding bad faith registration where:
Respondent had actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s … mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to and in competition with Complainant.
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 <eleictrolux.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: July 13, 2018
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