AB Electrolux v. Julian B A Ramirez
Claim Number: FA1810001812164
Complainant is AB Electrolux (“Complainant”), represented by Cecilia Borgenstam of SILKA Law AB, Sweden. Respondent is Julian B A Ramirez (“Respondent”), Colombia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <servitecelectrolux.xyz>, registered with Hostinger, UAB.
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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 17, 2018; the Forum received payment on October 17, 2018.
On November 28, 2018, Hostinger, UAB confirmed by e-mail to the Forum that the <servitecelectrolux.xyz> domain name is registered with Hostinger, UAB and that Respondent is the current registrant of the name. Hostinger, UAB has verified that Respondent is bound by the Hostinger, UAB 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 December 3, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 24, 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@servitecelectrolux.xyz. Also on December 3, 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 December 28, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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 a Swedish joint stock company founded in 1901 and one of the world’s leading producers of appliances and equipment for kitchen, cleaning, and floor care products. Complainant has rights in the ELECTROLUX mark based on its registration of the mark with a governmental authority in Colombia. (e.g., Reg. No. 013597893, registered May 12, 2015). Respondent’s <servitecelectrolux.xyz> domain name is confusingly similar to Complainant’s ELECTROLUX mark as it incorporates the mark in its entirety and is differentiated only by the addition of the generic and/or descriptive term “servitec” (which is a combination of the two words “servicio” and “tecnico” in the Spanish language), and the “.xyz” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <servitecelectrolux.xyz> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the ELECTROLUX mark in any manner. Additionally, Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to pass off as Complainant to sell unauthorized goods or services. Additionally, the disputed domain name is used to promote and offer the goods and/or services of competitors.
Respondent registered and is using the <servitecelectrolux.xyz> domain name in bad faith. Respondent attempts to pass off as Complainant to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website. Lastly, Respondent clearly had knowledge of Complainant and Complainant’s rights in the ELECTROLUX mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes that the disputed domain name was registered on May 2, 2018.
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 in the ELECTROLUX mark based upon registration of the mark with a government authority in Colombia. Registration of a mark with a governmental authority is sufficient to establish rights in that mark per Policy ¶ 4(a)(i). See Glashütter Uhrenbetrieb GmbH v. li zilin / QQ869292929, FA 1575562 (Forum Sept. 23, 2014) (holding, “Trademark registrations with a governmental authority are sufficient to prove rights in a mark pursuant to Policy ¶4(a)(i)”) Complainant demonstrates its registration of this mark with a governmental authority in Columbia (e.g. Reg. No. 013597893, registered May 12, 2015). Therefore, the Panel holds that Complainant’s registration of the ELECTROLUX mark is sufficient to establish rights in the mark under Policy ¶ 4(a)(i).
Next, Complainant argues Respondent’s <servitecelectrolux.xyz> domain name is confusingly similar to Complainant’s ELECTROLUX mark as it incorporates the mark in its entirety and is differentiated only by the addition of the generic and/or descriptive term “servitec” (which is a combination of the two words “servicio” and “tecnico” in the Spanish language), and the “.xyz” gTLD. Additions to a complainant’s mark such as a generic and/or descriptive term and a gTLD do not negate any confusing similarity between a disputed domain name and a mark under Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that 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 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). Therefore, the Panel determines that the <servitecelectrolux.xyz> domain name is confusingly similar to the ELECTROLUX mark per Policy ¶ 4(a)(i).
Rights or Legitimate Interests
Complainant argues that Respondent has no rights or legitimate interests in the <servitecelectrolux.xyz> domain name, as Respondent is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name per Policy ¶ 4(c)(ii). See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”). The WHOIS information of record for the <servitecelectrolux.xyz> domain name identifies Respondent as “Julian B A Ramirez,” and no information on the record indicates that Respondent is authorized or licensed to use the ELECTROLUX mark. The Panel therefore finds that Respondent has not been commonly known by the <servitecelectrolux.xyz> domain name under Policy ¶ 4(c)(ii).
Complainant further argues Respondent fails to use the <servitecelectrolux.xyz> domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Complainant contends that Respondent uses the disputed domain name to pass off as Complainant to sell unauthorized goods or services. Passing off as a complainant to sell unauthorized goods or services is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Netflix, Inc. v. Irpan Panjul / 3corp.inc, FA 1741976 (Forum Aug. 22, 2017) (“The usage of Complainant’s NETFLIX mark which has a significant reputation in relation to audio visual services for unauthorised audio visual material is not fair as the site does not make it clear that there is no commercial connection with Complainant and this amounts to passing off . . . As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name.”). Complainant provides a screenshot of the disputed domain name’s resolving website which displays Complainant’s mark, an inserted copyright text that creates the impression that Respondent has rights in the mark, and products that appear similar to those of Complainant’s. Therefore, the Panel agrees that Respondent failed to use the <servitecelectrolux.xyz> domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii).
Complainant also argues that Respondent fails to use the <servitecelectrolux.xyz> domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use because the disputed domain name is used to promote and offer the goods and/or services of competitors. Promoting and offering for sale goods and/or services of competitors is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute 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 provides screenshots of the disputed domain name which mentions the following in Spanish: ““SOMOS UNA EMPRESA DEDICADA AL ARREGLO DE GASODOMESTICOS HACEB” (in English “WE ARE A COMPANY DEDICATED TO THE REPAIRS OF HACEB APPLIANCES"), referring to HACEB, a Colombian local company that seems to be engaged in the sale and distribution of household appliances. Therefore, the Panel finds that Respondent’s use of the disputed domain name to promote competitors’ goods and services is not indicative of any rights or legitimate interests per Policy ¶¶ 4(c)(i) and (iii).
Thus, Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant claims that Respondent registered and uses <servitecelectrolux.xyz> domain name in bad faith. Specifically, Complainant argues that Respondent uses the disputed domain name to pass off as Complainant and intentionally attempts to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website. Passing off as a complainant for commercial gain can demonstrate bad faith under Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”). As previously noted, Complainant provides a screenshot of the disputed domain name’s resolving website which displays Complainant’s mark, an inserted copyright text that creates the impression that Respondent has rights in the mark, and products that appear similar to those of Complainant’s. Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Lastly, Complainant argues that Respondent had actual knowledge of Complainant’s rights in the ELECTROLUX mark. Complainant contends, and Respondent does not dispute, and given that the disputed domain name was registered well after Complainant’s ELECTROLUX registration and given that the ELECTROLUX mark is well-known in Colombia, where Respondent is apparently located, Respondent must have had actual knowledge. The Panel agrees, and finds that Respondent did have actual knowledge of Complainant’s rights in the ELECTROLUX mark, which demonstrates bad faith per Policy ¶ 4(a)(iii).
Thus, Complainant has also 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 <servitecelectrolux.xyz> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: January 11, 2019
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