AB Electrolux v 杨智超 (Zhi Chao Yang)

WIPO Case No. D2023-2339

ARBITRATION

AND

MEDIATION CENTER

ADMINISTRATIVE PANEL DECISION

AB Electrolux v. 杨智超 (Zhi Chao Yang)

Case No. D2023-2339

1. The Parties

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

The Respondent is 杨智超 (Zhi Chao Yang), China.

2. The Domain Name and Registrar

The disputed domain name <eelectrolux.com> (the “Domain Name”) is registered with Cloud Yuqu LLC (the

“Registrar”).

3. Procedural History

The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on May 31, 2023. On May 31, 2023, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On June 1, 2023, 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 (Redacted For Privacy) and contact information in the Complaint. The Center sent an email communication to the Complainant on June 1, 2023, 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 and the second amended Complaint in English on June 1, 2023, July 7, 2023 respectively.

On June 1, 2023, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On the same day, the Complainant submitted its request that English be the language of the proceeding. The Respondent did not comment on the language of the

proceeding.

The Center verified that the Complaint together with the amendment to the Complaint and the second
amended 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”).

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In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent in both English and Chinese of the Complaint, and the proceedings commenced on June 8, 2023. In accordance with the Rules, paragraph 5, the due date for Response was June 28, 2023. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 11, 2023.

The Center appointed Karen Fong as the sole panelist in this matter on July 18, 2023. 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

The Complainant is a Swedish joint stock company founded in 1901 and is a world leading producer of appliances and equipment for kitchen and cleaning products and floor care products. The Complainant’s flagship brand for kitchen and cleaning appliances is ELECTROLUX. In 2021, the Complainant had group sales of SEK 126 billion.

The ELECTROLUX trademark is registered in more than 150 countries including in China where the Mark No: 109326 was registered on April 3, 1964 (the “Trade Mark”). The Complainant has also registered the trade mark ELECTROLUX as a domain name under numerous generic Top-Level Domains (“gTLDs”) and country code Top-Level Domains (“ccTLDs") worldwide including <electrolux.com>.

Based on available records, the Respondent is an individual based in China. The Domain Name was registered on December 1, 2022. The Domain Name resolves to a pay-per-click (“PPC”) webpage with link headings such as: “Electrolux Washing Machine”, “Electrolux Washer and Dryer” and “Electrolux Refrigerator” (the “Website”).

5. Parties’ Contentions

A. Complainant

The Complainant contends that the Domain Name is confusingly similar to the Trade Mark, that the
Respondent has no rights or legitimate interests with respect to the Domain Name, and that the Domain
Name was registered and is being used in bad faith. The Complainant requests transfer of the Domain

Name.

B. Respondent

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

6. Discussion and Findings

A. General

According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the
Complainant must prove each of the following, namely that:

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

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

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(iii)      The Domain Name was registered and is being used in bad faith.

B. Language of the Proceeding

The Rules, paragraph 11(a), provide that unless otherwise agreed by the parties or specified otherwise in the registration agreement, the language of the proceeding shall be the language of the registration agreement, subject to the authority of the panel to determine otherwise, having regard to the circumstances of the

administrative proceeding. According to the information received from the Registrar, the language of the
Registration Agreement for the Domain Name is Chinese.

The Complainant submits that the language of the proceeding should be English for the following main reasons:

- the Domain Name comprises an English word and characters;

- the Website in in the English language providing PPC links in Swedish;

- the Respondent has been involved in at least 67 previous UDRP disputes involving well-known third
party international brands;

- the panel in a number of the UDRP disputes involving the Respondent have accepted English as the
language of proceeding (see New Relic, Inc. v. 杨智超 (Zhi Chao Yang), WIPO Case No. D2023-0291,
Brixmor Property Group, Inc. v. 杨智超 (Zhi Chao Yang), WIPO Case No. D2023-0470).

In exercising its discretion to use a language other than that of the Registration Agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both Parties, taking into account all relevant circumstances of the case, including matters such as the Parties’ ability to understand and use the proposed language, time and costs.

The Panel notes that the Domain Name and the Website are in the English language. Although the Center has sent the “Language of Proceedings” email and notified the Parties the commencement of administrative proceeding in both Chinese and English, the Respondent has not challenged the Complainant’s language

request and in fact has failed to file a response in either Chinese or English. The Panel is also mindful of the circumstances, the Panel determines that English be the language of the proceeding.

need to ensure the proceeding conducted in a timely and cost effective manner. In this case, the
C. Identical or Confusingly Similar

The Panel is satisfied that the Complainant has established that it has rights to the Trade Mark. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the trade mark and the domain name to determine whether the domain name is confusingly similar to the trade mark. The test involves a side-by-side comparison of the domain name and the textual components of the relevant trade mark to assess whether the mark is recognizable within the domain name. In this case, the Domain Name contains the Trade Mark in its entirety together with the addition of the letter “e” before the Trade Mark. It is well established that domain names which consist of a common, obvious, or intentional misspelling of a trade mark are considered to be confusingly similar to the relevant mark for the purposes of the first element. This stems from the fact that the domain name contains sufficiently recognizable aspects of the relevant mark. Also, pursuant to section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”): “A domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element.” This is a typical typosquatting case as the Trade Mark is clearly recognisable within the Domain Name despite the misspelling or the addition of the letter “e” before the Trade Mark.

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For the purposes of assessing identity or confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the gTLD which in this case is “.com”. It is viewed as a standard registration requirement (section 1.11.1 of the WIPO Overview 3.0). The Panel finds that the Domain Name is confusingly similar to trade marks in which the Complainant has rights and that the requirements of paragraph 4(a)(i) of the Policy therefore are fulfilled.

D. Rights or Legitimate Interests

Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights or legitimate interests in the disputed domain name by demonstrating any of the following:

(i)        before any notice to it 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 has been commonly known by the domain name, even if it has 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.

Although the Policy addresses ways in which a respondent may demonstrate rights or legitimate interests in a disputed domain name, it is well established that, as it is put in section 2.1 of the WIPO Overview 3.0, that a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate

interests. Once such a prima facie case is made, the burden of production shifts to the respondent to come
forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain
name. If the respondent does come forward with some allegations of evidence of relevant rights or
legitimate interests, the panel weighs all the evidence, with the burden of proof always remaining on the
complainant.

The Complainant contends that the Respondent is not commonly known by the Domain Name. It has not authorised, licensed or otherwise permitted the Respondent to use the Trade Mark in the Domain Name or for any other purpose. Further, the display of PPC links on the Website does not constitute a bona fide offering of goods or services or legitimate noncommercial or fair use of the Domain Name given the revenue the Respondent derives from Internet users mislead by the confusingly similar Domain Name.

The Panel finds that the Complainant has made out a prima facie case, a case calling for a reply from the Respondent. The Respondent has not responded and the Panel is unable to conceive of any basis upon which the Respondent could sensibly be said to have any rights or legitimate interests in respect of the

Domain Name.

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

E. Registered and Used in Bad Faith

To succeed under the Policy, the Complainant must show that the Domain Name has been both registered and used in bad faith. It is a double requirement.

The Panel is satisfied that the Respondent must have been aware of the Trade Mark when he registered the Domain Name given that the Trade Mark has no other meaning other than being the Complainant’s company name and Trade Mark, both of which have been used and registered long before the Domain Name. The

fact that the PPC link headings also comprise the Trade Mark also demonstrates the Respondent’s
knowledge of the Trade Mark.
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In the WIPO Overview 3.0, section 3.2.2 states as follows:

“Noting the near instantaneous and global reach of the Internet and search engines, and particularly in
circumstances where the complainant’s mark is widely known (including in its sector) or highly specific and a
respondent cannot credibly claim to have been unaware of the mark (particularly in the case of domainers),
panels have been prepared to infer that the respondent knew, or have found that the respondent should
have known, that its registration would be identical or confusingly similar to a complainant’s mark. Further
factors including the nature of the domain name, the chosen top-level domain, any use of the domain name,
or any respondent pattern, may obviate a respondent’s claim not to have been aware of the complainant’s
mark.”

There is a clear absence of rights or legitimate interests coupled with no explanation for the Respondent’s choice of the Domain Name are also significant factors to consider (as stated in section 3.2.1 of the WIPO Overview 3.0). In light of the above, the Panel finds that the Respondent deliberately registered the Domain

Name in bad faith.

The Panel also finds that the use of the Domain Name is in bad faith. The Website is a PPC site which has been set up for the commercial benefit of the Respondent. It is highly likely that Internet users when typing the Domain Name into their browser, or finding them through a search engine would have been looking for a site operated by the Complainant rather than the Respondent. The Domain Name is likely to confuse

Internet users trying to find the Complainant’s website. Such confusion will inevitably result due to the fact that the Domain Name contains a misspelled version of the Complainant’s distinctive Trade Mark.

The Respondent employs the reputation of the Trade Mark to mislead Internet users into visiting the Domain Name instead of the Complainant’s. From the above, the Panel concludes that the Respondent intentionally attempted to attract for commercial gain, by misleading Internet users into believing that the Respondent’s

Website is that of or authorised or endorsed by the Complainant. The Panel therefore concludes that the

Domain Name was registered and is being used in bad faith under paragraph 4(b)(iv) of the Policy.

The Panel has also noted that a number of UDRP cases concerning other third party brand owners where a pattern of bad faith conduct (section 3.1.2 of the WIPO Overview 3.0).

the Respondent has been the named respondent and those domain names have been ordered to be
transferred. These include Syneos Health LLC v. 杨智超 (Zhichao Yang), WIPO Case No. D2021-2731,
Granicus, LLC v. 杨智超 (Zhichao Yang), WIPO Case No. D2021-2844, Corning Incorporated v. 杨智超
(Zhichao Yang), WIPO Case No. D2021-4227, CenterPoint Energy, Inc. v. 杨智超 (Zhichao Yang), WIPO

The Panel finds that the Respondent has registered and used the Domain Name 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, <eelectrolux.com>, be transferred to the Complainant.

/Karen Fong/ Karen Fong Sole Panelist Date: August 11, 2023