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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

AB Electrolux v. Sha Chen

Case No. D2021-3160

1. The Parties

The Complainant is AB Electrolux, Sweden, represented by SILKA AB, Sweden.

The Respondent is Sha Chen, China.

2. The Domain Name and Registrar

The disputed domain name <elertcolux.com> (the “Domain Name”) is registered with Gname 009 Inc. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 24, 2021. On September 24, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 12, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 15, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on October 19, 2021.

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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 21, 2021. In accordance with the Rules, paragraph 5, the due date for Response was November 10, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 11, 2021.

The Center appointed Vincent Denoyelle as the sole panelist in this matter on November 18, 2021. 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

Given that no Response was filed, the following facts are based on the submissions in the Complaint and the Annexes to the Complaint.

The Complainant is a Swedish multinational home appliance manufacturer, headquartered in Stockholm.

The Complainant is the owner of several trade marks for ELECTROLUX including the following:

- United States Patent and Trademark Office trade mark ELECTROLUX, Registration No. 0248774, registered on October 30, 1928; and

- International Registration trade mark ELECTROLUX, Registration No. 836605, registered on March 17, 2004, designating China.

The Complainant is also the owner of several domain names reflecting its trade mark including <electrolux.com>.

The Domain Name was registered on September 15, 2021. The Domain Name does not currently resolve to an active website and it generates an error message. The Domain Name used to direct to explicit adult content and links related to gambling.

5. Parties’ Contentions

A. Complainant

The Complainant contends that the Domain Name is confusingly similar to the ELECTROLUX trade mark in which the Complainant has rights. The Complainant contends that the term “elertcolux” is an intentional misspelling of the trade mark ELECTROLUX where the letters “rtc” have been swapped around. The Complainant also highlights that the addition of the generic Top-Level Domain (“gTLD”) “.com” should be disregarded for the purpose of assessing confusing similarity.

The Complainant asserts that the Respondent has no rights to or legitimate interests in respect of the Domain Name. The Complainant contends that the Respondent is not commonly known by the Domain Name and there is no evidence that the Respondent has a history of using, or preparing to use, the Domain Name in connection with a bona fide offering of goods and services. The Complainant highlights the fact that according to the WhoIs provided in Annex 3 to the Complaint, the Respondent was known by the name “please contact our customer service to acquire it” which strongly suggests that this is a fabricated name. The Complainant also points to the fact that the Domain Name resolved to a website in Chinese with adult content as well as links to gambling pages and that such use cannot be considered as use of the Domain Name in connection with a bona fide offering of goods and services, or as a legitimate noncommercial or fair use.

The Complainant argues that the Respondent was aware that the trade mark ELECTROLUX enjoys a substantial reputation worldwide including in China where the Respondent is based and that it registered the Domain Name to take unfair advantage of the goodwill and reputation of the Complainant’s trade mark. The Complainant thus considers that the Domain Name was registered in bad faith. The Complainant also contends that the Domain Name is being used in bad faith by the Respondent. The Complainant points to the past content associated with the Domain Name to point to a webpage in the Chinese language with adult content and links to gambling sites as evidence of the Respondent’s bad faith and attempt to create a likelihood of confusion with the Complainant’s trade mark as to the source, sponsorship, affiliation or endorsement of the services offered on the Respondent’s website. The Complainant adds that such use is extremely prejudicial to the Complainant as it could tarnish the reputation of the Complainant and disrupt the business of the Complainant. Finally, the Complainant’s submits that given its goodwill and renown worldwide, and the nature of the Domain Name, which is confusingly similar to the Complainant’s trade mark, it is not possible to conceive a plausible circumstance in which the Respondent could legitimately use the Domain Name as it would invariably result in misleading diversion and taking unfair advantage of the Complainant’s rights. The Complainant thus considers that the Domain Name has been registered and is being used in bad faith.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

In order to prevail, the Complainant must substantiate that the three elements of paragraph 4(a) of the Policy have been met, namely:

(i) the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and

(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and

(iii) the Domain Name has been registered and is being used in bad faith.

In the case of default by a party, as is the case here, paragraph 14(b) of the Rules makes it clear that if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.

In the absence of a Response from the Respondent whereby the Respondent did not object to any of the contentions from the Complainant, the Panel will have to base its decision on the basis of the Complaint and supporting Annexes.

A. Identical or Confusingly Similar

In light of the evidence provided by the Complainant, the Panel is satisfied that the Complainant has substantiated that it holds valid trade mark rights in ELECTROLUX.

The second point that has to be considered is whether the Domain Name is identical or confusingly similar to the trade mark ELECTROLUX in which the Complainant has rights.

The only difference between the Domain Name and the ELECTROLUX trade mark of the Complainant is that the fourth and sixth letters (“c” and “r”) are swapped around. The term “elertcolux” does not mean anything to the best of the Panel’s knowledge and thus the Panel finds that the Domain Name constitutes an example of typosquatting and does not prevent a finding of confusing similarity between the Complainant’s trade mark and the Domain Name. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.9. Furthermore, recognizability of the Complainant’s trade mark in the Domain Name is also confirmed by technological means as, when searching for the term “elertcolux” via Google, all results triggered relate to the trade mark ELECTROLUX.

Then there is the addition of the gTLD “.com”. As is widely accepted, the addition of a gTLD such as “.com” is merely a technical registration requirement and as such is typically disregarded under the first element confusing similarity test.

Thus, the Panel finds that the Domain Name is confusingly similar to a trade mark or service mark in which the Complainant has rights.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy sets out relevant circumstances that could demonstrate that a respondent has rights or legitimate interests in a domain name, namely:

“Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate [the respondent’s] rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):

(i) before any notice to [the respondent] of the dispute, [the respondent’s] use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) [the respondent] (as an individual, business, or other organization) ha[s] been commonly known by the domain name, even if [the respondent] ha[s] acquired no trade mark or service mark rights; or

(iii) [the respondent is] making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.”

Numerous previous panels have found under the UDRP that once a complainant makes a prima facie showing that the respondent does not have rights or legitimate interests in a domain name, the burden of production shifts to the respondent to rebut the showing by providing evidence of its rights or legitimate interests in the domain name.

Having reviewed the Complainant’s assertions and evidence, the Panel is satisfied that the Complainant has made a prima facie showing that the Respondent does not have rights or legitimate interests in the Domain Name.

The Complainant has stated that there is no business or legal relationship between the Complainant and the Respondent and that it has not authorized the Respondent to make any use of its trade mark. There is no evidence that the Respondent is commonly known by the Domain Name especially given that the Respondent chose not to respond.

The Domain Name is currently inactive, and was used to direct to a website with explicit adult content and links to gambling. Given the overall circumstances of the case, including the renown of the Complainant’s trade mark, the Panel concludes that the Respondent’s use of the Domain Name cannot be seen as a legitimate noncommercial or fair use of the Domain Name nor can it be seen as a bona fide offering of goods or services.

Thus, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy sets out a number of relevant non-exhaustive circumstances, which can be deemed to constitute evidence of registration and use of a domain name in bad faith, namely:

(i) circumstances indicating that [the respondent has] registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trade mark or service mark or to a competitor of that complainant, for valuable consideration in excess of [the respondent’s] documented out-of-pocket costs directly related to the domain name; or

(ii) [the respondent has] registered the domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that [the respondent has] engaged in a pattern of such conduct; or

(iii) [the respondent has] registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] website or location or of a product or service on [the respondent’s] website or location.

Given the circumstances described in the Complaint and the documentary evidence provided by the Complainant, the Panel finds that the Domain Name was registered in bad faith.

The Domain Name is confusingly similar to the trade mark ELECTROLUX of the Complainant and this cannot be a coincidence.

The trade mark ELECTROLUX of the Complainant is not a descriptive or common term and its protection as a trade mark in a number of jurisdictions, including in China where the Respondent is reportedly located, significantly predates the registration of the Domain Name by the Respondent. The Complainant has provided sufficient evidence and previous UDRP panels under the Policy have found that the Complainant’s ELECTROLUX trade mark is well known. Thus, the fact that the Respondent chose to register the Domain Name which only differs from the Complainant’s ELECTROLUX well-known trade mark by the inversion of the letters “c” and “r” leads the Panel to find it inconceivable that the Respondent would not have been well aware of the Complainant and its trade mark at the time of registration of the Domain Name. The Panel finds that when registering the Domain Name, the Respondent had the Complainant’s trade mark in mind and targeted it specifically.

Thus, the Panel finds that the Domain Name was registered in bad faith.

As for use of the Domain Name in bad faith, given the circumstances described in the Complaint, the documentary evidence provided by the Complainant, and the brief verification carried out by the Panel of the website associated with the Domain Name, the Panel is satisfied that the Domain Name is being used in bad faith.

The Domain Name used to direct to a website with explicit adult content and links to gambling websites which in the present circumstances can only be seen as use of the Domain Name in bad faith.

As for the current use of the Domain Name, it is currently inactive. Passive use itself would not prevent a finding of the Respondent’s bad faith given the overall circumstances here, specifically the renown of the Complainant’s ELECTROLUX trade mark. The Panel finds that by using the Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant’s trade mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or of a product on the Respondent’s website.

The fact that the Respondent chose not to object to the Complainant’s assertions can only reinforce the Panel’s view that the Domain Name is being used in bad faith.

Finally, this is further supported by the fact that the Respondent deliberately chose to provide incorrect registration data when registering the Domain Name as, according to the courier delivery report, the Center’s Written Notice failed to deliver due to the Respondent’s false physical contact address. In the circumstances, this is an additional indication of the Respondent’s bad faith and its intent to use the Domain Name in a way which may be abusive or otherwise detrimental to the Complainant and its rights.

Thus, the Panel finds that the Domain Name was registered and is being used in bad faith.

7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <elertcolux.com> be transferred to the Complainant.

Vincent Denoyelle
Sole Panelist
Date: December 2, 2021

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