AB Electrolux v. CHervinchuk Maksim Nikolaevich
Case No. D2015-1328
1. The Parties
Complainant is AB Electrolux of Stockholm, Sweden, represented by BrandIT Legal AB, Sweden.
Respondent is CHervinchuk Maksim Nikolaevich of Kiev, Ukraine.
2. The Domain Name and Registrar
The disputed domain name is registered with OnlineNic, Inc. d/b/a China-Channel.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 29, 2015. On July 30, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 31, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on August 7, 2015 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on August 9, 2015.
The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on August 20, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was September 9, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on September 11, 2015.
The Center appointed Stephanie G. Hartung as the sole panelist in this matter on October 2, 2015. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
Complainant is a German stock company with its legal domicile in Sweden established in 1901 and is a producer of appliances and equipment for kitchen as well as cleaning and floor care products. Complainant is the owner of numerous brands including AEG, AEG-Electrolux, and Electrolux.
Complainant has provided evidence that it has registered, by itself or through its subsidiaries, the AEG brand as a word/device mark in many countries all over the world, including in Ukraine, e.g., AEG, International Trademark Registration No.: 508107, Registration Date: November 28, 1986, Status: Active.
Moreover, Complainant has also evidenced to be the registered owner of various domain names relating to the AEG brand, e.g., , registered on October 19, 1993.
According to the Registrar’s verification of July 31, 2015, the disputed domain name was created on February 25, 2014. It redirects to a website at “www.aeg-ua.com” which apparently is set up in the Russian language and offers a variety of Complainant’s AEG products for sale under the official AEG brand.
Complainant requests that the disputed domain name be transferred to Complainant.
5. Parties’ Contentions
Complainant asserts to be one of the world’s leading producers of home and professional appliances with the AEG brand standing for high quality products worldwide.
Complainant suggests that the disputed domain name is confusingly similar to Complainant’s AEG trademark since the disputed domain name directly incorporates said trademark and the additional letters “ua” as an abbreviation for Ukraine do not alter the confusion between the disputed domain name and Complainant’s AEG trademark that Internet users would experience.
Complainant further claims that Respondent has no rights or legitimate interests in respect of the disputed domain name since (1) Respondent has not been authorized by Complainant to use the AEG trademark, neither as a domain name nor on any website, (2) Respondent’s website under the disputed domain name has the look and feel of one of Complainant’s official websites, but does not contain any disclaimer that discloses the non-existing business relationship between Complainant and Respondent and (3) Respondent itself has made no claims, neither to have any relevant prior rights of its own nor to have become commonly known by the disputed domain name.
Finally, Complainant argues that the disputed domain name was registered and is being used in bad faith by Respondent since (1) AEG is a well-known trademark in the home appliance industry including in Ukraine and it is highly unlikely that Respondent was not aware of Complainant’s rights therein at the point of the registration of the disputed domain name, (2) Respondent does not disclaim on its website the non-existing relationship between itself and Complainant and, therefore, is apparently using the disputed domain name to intentionally attempt to attract, for commercial gain, Internet users to its own website by creating a likelihood of confusion with Complainant’s AEG trademark as to the source, sponsorship, affiliation or endorsement of Respondent’s website and (3) Respondent disregarded any pre-procedural communication with Complainant, e.g., Complainant’s attempts to contact Respondent on February 11, 2015 through a cease and desist letter sent by email as well as several reminders thereof sent on March 20, 2015 as well as on March 27, 2015.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, Complainant carries the burden of proving:
(i) That the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) That Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) That the disputed domain name has been registered and is being used in bad faith.
Respondent's default in the case at hand does not automatically result in a decision in favor of Complainant, however, paragraph 5(e) of the Rules provides that if Respondent does not submit a Response, in the absence of special circumstances, the Panel is to decide the dispute solely based upon the Complaint.
A. Identical or Confusingly Similar
The Panel concludes that the disputed domain name is confusingly similar to the AEG trademark in which Complainant has shown to have rights.
The disputed domain name incorporates the AEG trademark in its entirety. It has been held in numerous UDRP decisions and has meanwhile become a consensus view among panelists (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 1.9) that the addition of a generic or descriptive term or geographic wording to a trademark in a domain name is normally insufficient in itself to avoid the finding of confusing similarity under the first element of the UDRP. Accordingly, the mere addition of the two letters “ua” as an abbreviation for “Ukraine” is not capable to dispel the confusing similarity arising from the incorporation of Complainant’s AEG trademark in the disputed domain name.
Therefore, the first element under the Policy set forth by paragraph 4(a)(i) in the case at hand is fulfilled.
The Panel is further convinced that on the basis of Complainant’s undisputed contentions, Respondent apparently has neither made use of the disputed domain name in connection with a bona fide offering of goods or services, nor has Respondent been commonly known by the disputed domain name, nor can it be found that Respondent makes a legitimate, noncommercial or fair use without intent for commercial gain.
Respondent has not been authorized to use Complainant’s AEG trademark, neither as a domain name nor in any other way. Also, there is no reason to believe that Respondent’s name somehow corresponds with the disputed domain name.
Moreover, Complainant asserts, and Respondent has made no efforts whatsoever to refuse this assertion, that Respondent is not an authorized dealer or representative of Complainant in the Ukraine and that the website at “www.aeg-ua.com” has the look and feel of one of Complainant’s official websites, but does not contain any kind of disclaimer disclosing the parties’ non-existing business relationship. Against this background, the Panel agrees with Complainant’s line of argumentation that the prerequisites for a bona fide offering of goods as set forth by the so-called “OKI Data Principles” (see WIPO Overview 2.0, paragraph 2.3; Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903) in the case at hand are not fulfilled as they require that the website under the disputed domain name accurately and prominently discloses the registrant’s relationship to the trademark holder.
Accordingly, Complainant has established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name. Now, the burden of production shifts to Respondent to come forward with appropriate allegations or evidence demonstrating to the contrary (see WIPO Overview 2.0, paragraph 2.1). Respondent, however, has not offered any suggestion as to why he should be entitled to using Complainant’s well-known AEG trademark as a domain name under the circumstances provided for by paragraph 4(c)(i) through (iii) of the Policy.
Therefore, the Panel finds that Complainant has also satisfied paragraph 4(a)(ii) and thus the second element of the Policy
C. Registered and Used in Bad Faith
The Panel finally holds that the disputed domain name was registered and is being used by Respondent in bad faith.
Given the overall appearance of Respondent’s website under the disputed domain name, there can be no reasonable doubt that Respondent had knowledge of Complainant’s famous AEG trademark and, therefore, Complainant’s rights therein at the time of the registration of the disputed domain name. Accordingly, given the confusing similarity of the disputed domain name with Complainant’s famous AEG trademark and in light of the fact that Respondent has failed to demonstrate any rights or legitimate interests with respect to the disputed domain name, the Panel comes to the conclusion that Respondent intentionally attempted to attract, for commercial gain, Internet users to its own website, by creating a likelihood of confusion with Complainant’s AEG trademark as to the source, sponsorship, affiliation or endorsement of Respondent’s website. Such circumstances are evidence of registration and use of the disputed domain name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy.
In this context, the Panel also recognizes that Respondent not only made use of a privacy service in order to conceal its true identity, but that Respondent also provided false WhoIs information for the disputed domain name, since the Written Notice of the Complaint sent to Respondent by the Center on August 20, 2015 could not be delivered due to a wrong address (which was confirmed by the shipment agent). These circumstances, in connection with the fact that Respondent kept silent on any of Complainant’s pre-procedural attempts to communicate, at least throw a light on Respondent’s behavior which supports that the disputed domain name was registered and is being used by Respondent in bad faith.
Therefore, the Panel finds that also the third element under the Policy set forth by paragraph 4(a)(iii) is fulfilled and that, accordingly, Complainant has satisfied all of the three requirements of paragraph 4(a) under the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to Complainant.
Stephanie G. Hartung
Date: October 6, 2015