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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Whirlpool Properties, Inc. and Whirlpool Corporation v. Gioacchino Zerbo

Case No. D2006-0549

 

1. The Parties

The Complainants are Whirlpool Properties, Inc., St. Joseph, Michigan, United States of America and Whirlpool Corporation, Benton Harbor, Michigan, United States of America (hereinafter the “Complainant”, represented by an authorized representative, United States of America.

The Respondent is Gioacchino Zerbo, Senna Comasco, CO, Italy.

 

2. The Domain Name and Registrar

The disputed domain name <whirpool.com> is registered with Tuonome.it.srl.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 1, 2006. On May 2, 2006, the Center transmitted by email to Tuonome.it.srl a request for registrar verification in connection with the domain name at issue. On May 4, 2006, Tuonome.it.srl transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 the Respondent of the Complaint, and the proceedings commenced on May 8, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was May 28, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 29, 2006.

The Center appointed Gabriela Paiva Hantke as the sole panelist in this matter on June 12, 2006. 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 company based in the United States that manufactures and sells around the world WHIRLPOOL branded products. The Complainant explains that annual sales over the world are US$19 million, that the company has 80,000 employees and over 50 manufacturing and technology research centers around the globe. The company owns over 750 trademarks for the WHIRPOOL brand in over 130 countries in classes 7, 9 and 11. The trademark registrations in the United States and Italy date back to 1950 and the company owns around 7 registrations in Italy.

The Complainant uses its WHIRLPOOL mark in connections with web sites worldwide, and it is the owner of 120 worldwide country code specific domain names that contain the WHIRLPOOL trademark.

According to the Tuonome registration data base, the Respondent in this administrative procedure is Gioacchino Zerbo, an individual located in Senna, Comasco, CO, Italy. Previously, the domain name was owned by Michele Dinoia d.b.a SZK.COM as shown by the Network Solutions WHOIS computer printout. Such person was officially notified by e-mail and fax about the trademark rights of the Complainant and requested to respond. A letter was also sent. According to publicly available information, Michele Dinoia has been involved in numerous NAF and WIPO cases. However, the Complainant discovered, on February 27, 2006, that the domain name <whirpool.com> was owned by the current Respondent Gioacchino Zerbo who has also been involved in UDRP cases. The Respondent did not file any response and according to case information there is no evidence that he owns any trademark registration or other rights identical or similar to the disputed domain name.

 

5. Parties’ Contentions

A. Complainant

The Complainant expresses that the disputed domain name <whirpool.com> is almost identical, except that the letter “L” is missing, to its widely known, registered and used WHIRLPOOL trademark and has shown legitimate rights over the WHIRLPOOL trademark.

The Complainant also states:

A. WHIRLPOOL branded goods and WHIRLPOOL trademark registrations are present in around 130 countries, including Italy, the country of the Respondent.

B. In addition, the Complainant owns country code specific domain names that contain the WHIRLPOOL trademark.

C. The Respondent has no known right or business activity under the mark WHIRLPOOL, so he does not have a legitimate right over such expression, which by the contrary is the trademark registered and used by the Complainant worldwide, as shown in documents attached as annexes to the Complaint.

D. The Respondent has been involved in other UDRP cases.

E. The Respondent’s purpose in registering and using the domain name is to benefit from the Complainant’s good will in its trademark WHIRLPOOL. Consumers who make a typographical error will enter the Respondent’s web site instead of the Complainant’s web site, which is the one they are originally looking for and expecting to reach.

F. Such described conduct is intentional and in bad faith to attract, for commercial gain, the Complainant’s visitors, and thus to create a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s web site or location for products or service or the Respondent.

B. Respondent

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

 

6. Discussion and Findings

A. Identical or Confusingly Similar

It is an evident fact that the disputed domain name <whirpool.com> is almost identical, and confusingly similar, to the Complainant’s registered and used trademark WHIRLPOOL, except for the missing letter “L”.

It is proved that the Complainant owns trademark and domain name registrations in the United States, Italy and around 130 countries of the world.

Complainant has used, advertised and promoted the trademark WHIRLPOOL, and the WHIRLPOOL source of trademarks, good and services are widely known as belonging to the Complainant. Thus, consumers typing “www.whirpool.com”, the Complainant’s trademark with a typing error, obviously are expecting to reach the Complainant’s products, services and information.

In conclusion the disputed domain name <whirpool.com> is confusingly similar to the Complainant’s used and registered trademark WHIRLPOOL, and it is what is called a case of typosquatting.

B. Rights or Legitimate Interests

As expressed before, the Complainant has proved rights in a trademark that is identical to the disputed domain name, except by one letter, the letter “L”.

By the contrary, the Respondent, having been granted the opportunity within this administrative proceedings, did not file any material or statement showing rights or interests in the disputed domain name and such fact suggests he does not own any right over the domain name under dispute.

The Panel is satisfied that the Complainant has established a prima facie case that the Respondent has no right or legitimate interest in the domain name, a case which the Respondent has not rebutted.

In conclusion, the Panel finds, based on the record, that the Respondent has no right or legitimate interest in respect to the domain name <whirpool.com>.

C. Registered and Used in Bad Faith

Considering that the WHIRLPOOL registered trademarks and domain names belong to the Complainant, which promotes and sells WHIRLPOOL goods worldwide, and has for decades, the Respondent’s conduct in registering and using a domain name confusingly similar to the cited worldwide registered trademark indicates bad faith on the part of the Respondent. In addition, the fact that the Respondent has been involved in previous UDRP cases further indicates his bad faith in accordance with paragraph 4(b)(ii) of the Policy.

As previously stated, this is a case of typosquatting. As a consequence, consumers searching for the Complainant’s website may be misled to the web site of the Respondent instead of being able to visit the web site of the Complainant. The website of the Respondent is further used for commercial gain, and advertises goods of the Complainant and competitors of the Complainant.

Considering the Complainant’s wide use and registration of the WHIRLPOOL trademark worldwide including in Italy, where the Respondent resides, it is not possible to believe that Respondent did not know of the WHIRLPOOL trademark.

The Panel finds that the Respondent has registered and is using the domain name in bad faith.

 

7. Decision

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

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Gabriela Paiva Hantke
Sole Panelist

Dated: June 26, 2006