AB Electrolux v. Ozkan USLU
Claim Number: FA1808001802103
Complainant is AB Electrolux (“Complainant”), represented by Cecilia Borgenstam of SILKA Law AB, Sweden. Respondent is Ozkan USLU (“Respondent”), Turkish.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <electrolux-teknik-servisi.com>, registered with Nics Telekomunikasyon A.S.
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 Forum electronically on August 20, 2018; the Forum received payment on August 20, 2018.
On August 23, 2018, Nics Telekomunikasyon A.S. confirmed by e-mail to the Forum that the <electrolux-teknik-servisi.com> domain name is registered with Nics Telekomunikasyon A.S. and that Respondent is the current registrant of the name. Nics Telekomunikasyon A.S. has verified that Respondent is bound by the Nics Telekomunikasyon A.S. 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 August 28, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint in English and Turkish, setting a deadline of September 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@electrolux-teknik-servisi.com. Also on August 28, 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 September 19, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson, 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.
Panel Note: Language of the Proceedings
The Panel notes that the Registration Agreement is written in Turkish, thereby making the language of the proceedings in Turkish. Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Turkish language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
A. Complainant
Complainant, AB Electrolux, is a Swedish joint stock company founded in 1901 and is one of the world’s leading producers of appliances and equipment for kitchen, cleaning, and floor care products. Complainant uses its ELECTROLUX mark to promote its products and services and established rights in the mark through registration with the Madrid Protocol (e.g., Reg. No. 836,605, registered Mar. 17, 2004). Respondent’s <electrolux-teknik-servisi.com> domain name is confusingly similar to Complainant’s mark because it merely adds hyphens, generic terms and the generic top-level domain (“gTLD”) “.com.”
Respondent does not have rights or legitimate interests in the <electrolux-teknik-servisi.com> domain name. Complainant has not licensed or otherwise authorized Respondent to use its ELECTROLUX mark in any fashion. Respondent is also not commonly known by the disputed domain name as the WHOIS information of record lists “Ozkan USLU” as the registrant. Respondent is not using the <electrolux-teknik-servisi.com> domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to pass off as Complainant and offer competing products and services at the resolving website.
Respondent registered and is using the <electrolux-teknik-servisi.com> domain name in bad faith. Respondent is using the domain name to create confusion with Complainant’s mark for Respondent’s commercial gain. Further, Respondent registered the disputed domain name with full knowledge of Complainant’s rights in the ELECTROLUX mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is AB Electrolux (“Complainant”), of Stockholm, Sweden. Complainant is the owner of domestic and international registrations for the mark ELECTROLUX, which it has continuously used since at least as early as 1998 in connection with its provision of goods and services in the kitchen appliance and equipment industry, as well as the cleaning and floor care products business. Complainant also maintains a presence in cyberspace with numerous websites such as <electrolux.com>.
Respondent is Ozkan USLU (“Respondent”), of Istanbul, Turkey. Repsondent’s registrar’s address is listed as the same. The Panel notes that Respondent registered the <electrolux-teknik-servisi.com> domain name on or about August 16, 2017.
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 contends it has rights in its ELECTROLUX mark to promote its products and services and established rights in the mark through registration with the Madrid Protocol (e.g., Reg. No. 836,605, registered Mar. 17, 2004). Registration of a mark with a trademark authority, such as the Madrid Protocol, confers rights in a mark. See 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).”). The Panel here finds that Complainant has rights in the ELECTROLUX mark.
Next, Complainant claims that Respondent’s <electrolux-teknik-servisi.com> domain name is confusingly similar to Complainant’s mark because it merely adds hyphens, generic terms and the gTLD “.com.” The addition of hyphens, generic terms and a gTLD may not sufficiently distinguish a disputed domain name from a mark. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Forum Feb. 18, 2004) (finding that hyphens and top-level domains are irrelevant for purposes of the Policy); see also Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).). Complainant argues that Respondent adds the generic Turkish terms “teknik” and “servisi,” which mean “technic” and “service” in English. The Panel here finds that Respondent’s <electrolux-teknik-servisi.com> domain name is confusingly similar to Complainant’s mark.
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
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), 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 (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 here has set forth the requisite prima facie case.
Complainant alleges that Respondent does not have rights or legitimate interests in the disputed domain name, as Respondent is not commonly known by the domain name and Complainant has not licensed or otherwise authorized Respondent to use its ELECTROLUX mark in any fashion. Absent contradicting evidence in the record that a respondent was authorized to use a complainant’s mark in a domain name or that a respondent is commonly known by the disputed domain name, the respondent may be presumed to lack rights and legitimate interests in the domain name. See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name). Under Policy ¶ 4(c)(ii), WHOIS information can be used to support a finding that a respondent is not commonly known by a disputed domain name. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). The WHOIS information of record for the <electrolux-teknik-servisi.com> domain name lists “Ozkan USLU” as the registrant. The Panel here finds that Respondent is not commonly known by the <electrolux-teknik-servisi.com> domain name.
Further, Complainant claims that Respondent uses the <electrolux-teknik-servisi.com> domain name to pass off as Complainant and offer competing products and services at the resolving website. Under Policy ¶ 4(c)(i) or (iii), use of a domain name to pass off as a complainant for financial gain may not be considered a bona fide offering of goods or services or legitimate noncommercial or fair use. See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).). Complainant provided screenshots of the <electrolux-teknik-servisi.com> website, which show that the site features Complainant’s ELECTROLUX mark, photos of home appliance products that compete with Complainant’s products, and purports to offer competing products for purchase. The Panel here finds that Respondent failed to use the <electrolux-teknik-servisi.com> domain name for a legitimate Policy ¶ 4(c)(i) or (iii) use.
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
Complainant argues that Respondent is using the <electrolux-teknik-servisi.com> domain name to create confusion with Complainant’s mark for commercial gain by resolving to a website offering competing products. Per Policy ¶ 4(b)(iv), use of a domain name to attract Internet users and create confusion as to the source, sponsorship, affiliation or endorsement of the content therein may evidence bad faith. See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). As previously noted, Complainant provided screenshots of the <electrolux-teknik-servisi.com> website, which indicate that the site features Complainant’s ELECTROLUX mark, photos of home appliance products that compete with Complainant’s products, and purports to offer competing products for purchase. The Panel finds that Respondent registered and used the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Further, Complainant claims that Respondent registered the disputed domain name with full knowledge of Complainant’s rights in the ELECTROLUX mark. Actual knowledge of a complainant's rights in the mark prior to registering the disputed domain name is adequate evidence of bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). Complainant contends Respondent’s actual knowledge is demonstrated by its use of Complainant’s mark and logo at the resolving website. The Panel here finds that Respondent had actual knowledge of Complainant’s rights when the <electrolux-teknik-servisi.com> domain name was registered and subsequently used.
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
DECISION
As 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 <electrolux-teknik-servisi.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: Oct. 3, 2018
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