The Complainant is AB Electrolux of Stockholm, Sweden, represented by BrandIT Legal AB, Sweden.
The Respondent is Mehmet Ceran of Istanbul, Turkey.
The disputed domain name <zanussiservisi.com> is registered with FBS Inc. (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 11, 2016. On January 11, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 12, 2016, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. Further to the Center’s communication regarding the language of proceedings in both Turkish and English, the Complainant requested English to be the language of proceedings on January 15, 2016. The Respondent did not reply to that request.
The Center verified that 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 and 4, the Center formally notified the Respondent of the Complaint in both Turkish and English, and the proceedings commenced on January 22, 2016. In accordance with the Rules, paragraph 5, the due date for Response was February 11, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 12, 2016.
The Center appointed Kaya Köklü as the sole panelist in this matter on February 22, 2016. 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.
The Complainant is a Swedish joint stock company founded in 1901. It is a widely known producer of household appliances and equipment, in particular in the cleaning and kitchen sector. In 1984, it acquired the Italian appliance manufacturer Zanussi.
The Complainant and its affiliates own a large number of ZANUSSI trademark registrations around the world, including Turkey. According to the provided documents in the case file, the first trademark registration providing protection in Turkey dates back to the year 2006.
The Complainant and its affiliates also own a number of domain names which incorporate the ZANUSSI trademark, such as <zanussi.com>, which was created in 2005, and <zanussi.com.tr>, which was created already in 1997.
The Respondent appears to be an individual from Turkey.
The disputed domain name was created on January 28, 2008.
At the time of the decision, the disputed domain name did not resolve to an active website. However, screenshots have been provided by the Complainant showing that the disputed domain name was previously used for offering various repair services for Zanussi products in the Turkish language. The provided screenshots show that the Respondent also used the official ZANUSSI logo to promote its services.
According to documents provided in the case file, the Respondent did not reply to a letter previously send by the Complainant asking for a voluntary transfer of the disputed domain name.
The Complainant requests the transfer of the disputed domain name.
The Complainant is of the opinion that the disputed domain name is confusingly similar to its ZANUSSI trademark.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. It is rather argued that the disputed domain name falsely suggests that there is some official or authorized link with the Complainant for the purposes of repairs and services within Turkey.
Finally, it is argued that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant particularly argues that the Respondent was aware of the Complainant’s ZANUSSI trademark, when registering the disputed domain name in 2008. Concerning bad faith use, the Complainant points out that the Respondent did not publish a disclaimer describing the non-existent relationship between the Parties.
The Respondent did not reply to the Complainant’s contentions.
According to paragraph 14(a) and 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable and on the basis of the Complaint where no Response has been submitted.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) the disputed domain name is identical or confusingly similar to the trademarks in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complaint. Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.
However, concerning the uncontested information provided by the Complainant, the Panel may, where appropriate, accept the provided reasonable factual allegations in the Complaint as true. Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
The Panel has taken note of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) and, where appropriate, will decide consistent with the WIPO Overview 2.0.
The Panel determines in accordance with the Complainant’s request and the Rules, paragraph 11(a), that the language of these administrative proceedings shall be the English language. Although the language of the Registration Agreement is the Turkish language, the Panel finds that it would be inappropriate, given the circumstances of this case, to conduct the proceedings in Turkish and request a costly and time consuming Turkish translation of the Complaint, while the Respondent failed to raise any objection to the Center’s communication with regard to the language of the proceedings, although communicated in Turkish and English. The Panel believes that the Respondent will not be prejudiced by a decision being rendered in the English language.
The Panel finds that the Complainant has registered trademark rights in the mark ZANUSSI by virtue of a large number of trademark registrations, including trademark registrations in Turkey (IR 950678 of September 3, 2007 and TPE 86/096466 of August 2, 2006).
The Panel further finds that the disputed domain name is confusingly similar to the Complainant’s registered ZANUSSI trademarks, as it fully incorporates the Complainant’s trademark. The mere addition of the generic Turkish term “servisi”, which means “service” in the English language, does not serve to distinguish the disputed domain name from the Complainant’s registered ZANUSSI trademarks.
Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy.
The Panel further finds that the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name.
While the burden of proof on this element remains with the complainant, panels have recognized that this would result in the often impossible task of proving a negative, in particular as the evidence in this regard is often primarily within the knowledge of the respondent. Therefore, the Panel agrees with prior UDRP panels that the complainant is required to make out a prima facie case before the burden of production of evidence shifts to the respondent to show that it has rights or legitimate interests in the disputed domain name in order to meet the requirements of paragraph 4(a)(ii) of the Policy. Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.
The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to file any evidence or make any convincing argument to demonstrate rights or legitimate interests in the disputed domain name according to the Policy, paragraph 4(a)(ii) and 4(c).
In its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondent has no rights or legitimate interests to use the Complainant’s trademark ZANUSSI in a confusingly similar way within the disputed domain name.
In the absence of a Response by the Respondent, there is no indication in the current record that the Respondent is commonly known by the disputed domain name. Furthermore, the Respondent has failed to demonstrate any of the other non-exclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or other evidence of rights or legitimate interests in the disputed domain name.
On the contrary, the previously offered services under the disputed domain name indicate that the Respondent at least tried to gain commercial benefit by using a domain name which fully incorporates the Complainant’s trademark ZANUSSI. In this regard, the Panel notes that the Respondent’s website which was linked to the disputed domain name did not adequately disclose the relationship, or lack thereof, between the Respondent and the Complainant, thus creating the false impression that the Respondent is an official and authorised repair center for the Complainant’s products.
All in all, there is no indication that the Respondent is making a bona fide offering of goods and services or legitimate noncommercial or fair use of the disputed domain name without the intent for commercial gain to misleadingly divert users or to tarnish the ZANUSSI trademark.
Hence, the Panel finds that the Complainant has also satisfied the requirements of paragraph 4(a)(ii) of the Policy.
The Panel is further convinced that the Respondent has registered and used the disputed domain name in bad faith.
The Panel is well aware of the reputation and recognition of the Complainant’s trademark ZANUSSI. The Panel believes that the Respondent must have known of this trademark when registering the disputed domain name. This is in particular likely as the disputed domain name has been registered well after the Complainant’s ZANUSSI trademark registration in Turkey.
It rather appears that the Respondent has registered the disputed domain name solely for the purpose of creating an association with the Complainant, in particular with its products and services. After having reviewed the provided screenshots in the case file, the Panel is convinced that the Respondent has intentionally registered the disputed domain name to offer services for Zanussi products by creating the impression that its offered repair service is made by or at least with the authorisation of the Complainant. Not only the disputed domain name but also the design of the Internet site that was linked to the disputed domain name give the impression that the Respondent has intended to mislead Internet users who may search for official repair services for the Complainant’s ZANUSSI branded products.
Further, the Panel finds that the Respondent’s failure to respond to the Complainant’s warning letter and to the Complaint also supports the conclusion that it has registered and used the disputed domain name in bad faith in order to mislead consumers.
The Panel therefore concludes that the disputed domain name was registered and used in bad faith and that the Complainant has also satisfied the third element of the Policy, namely, paragraph 4(a)(iii) of 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, <zanussiservisi.com> be transferred to the Complainant.
Kaya Köklü
Sole Panelist
Date: March 4, 2016