Ecolab USA Inc. v. Wis INC
Claim Number: FA2007001904528
Complainant is Ecolab USA Inc. (“Complainant”), represented by Elizabeth M. Stafki, Texas, United States. Respondent is Wis INC (“Respondent”), Cayman Islands.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ecolabsalessuport.com>, registered with GoDaddy.com, LLC..
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 16, 2020; the Forum received payment on July 16, 2020.
On July 17, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <ecolabsalessuport.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On July 22, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 11, 2020 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@ecolabsalessuport.com. Also on July 22, 2020, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On August 13, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is the global leader in water hygiene, and energy technologies and services that protect people and vital resources. Complainant has rights in the ECOLAB mark through their registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 1.525,025, Registered Feb. 21, 1989). Respondent’s <ecolabsalessuport.com> domain name is confusingly similar to Complainant’s ECOLAB mark. Respondent incorporates the mark in its entirety and adds the term “sales support” along with the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <ecolabsalessuport.com> domain name as Respondent is not commonly known by the disputed domain name nor did Complainant authorize Respondent to use the ECOLAB mark in any way. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent’s domain name resolves to a parked page that displays links associated with Complainant’s business.
Respondent registered and used the <ecolabsalessuport.com> domain name in bad faith as Respondent attempts to cause consumer confusion by displaying links associated with Complainant’s business. Respondent engages in the practice of typosquatting by registering a domain name that differs by one letter from Complainant’s legitimate <ecolabsalessupport.com> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, based upon Complainant’s uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <ecolabsalessupport.com> domain name.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant claims to have rights in the ECOLAB mark due to its registration with the USPTO. Registration of a mark with the USPTO is sufficient to establish rights in a mark per Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Complainant has provided the Panel with a copy of its USPTO registration for the ECOLAB mark (e.g. Reg. No. 1.525,025, Registered Feb. 21, 1989). The Panel finds that Complainant has adequately shown rights in the ECOLAB mark per Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <ecolabsalessuport.com> domain name is confusingly similar to Complainant’s ECOLAB mark. Registration of a disputed domain name that contains a mark in its entirety with the addition of generic words and gTLD does not distinguish the domain name from the mark per Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)). Complainant argues that Respondent incorporates the mark in its entirety and adds the term “sales support” along with the “.com” gTLD. The Panel agrees and finds that Respondent’s domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”). The Panel finds that Complainant has made a prima facie case.
Complainant argues Respondent lacks rights or legitimate interest in the <ecolabsalessuport.com> domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been given license or consent to use the ECOLAB mark or register domain names using Complainant’s mark. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain name lists the registrant as “Wis INC” and there is no other evidence to suggest that Respondent was authorized to use the ECOLAB mark or was commonly known by the disputed domain name. The Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant argues that Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent’s domain name resolves to a parked page that displays links associated with Complainant’s business. Use of a disputed domain name to provide links associated or related to a complainant’s business is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). Complainant has provided the Panel with a screenshot of Respondent’s <ecolabsalessuport.com> domain name that show links to services related to Complainant’s business such as “Ecolab products” and “hand sanitizer.” The Panel finds that Respondent has failed to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii) and Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has proved this element.
Complainant argues that Respondent registered and used the <ecolabsalessuport.com> domain name in bad faith as Respondent attempts to cause consumer confusion by displaying links associated with Complainant’s business. Use of a disputed domain name to create consumer confusion by displaying links associated with a complainant’s business is evidence of bad faith per Policy ¶ 4(b)(iv). See Clark Equipment Company v. Namase Patel / Mumbai Domains, FA1406001566288 (Forum July 30, 2014) (“The Panel observes that the Respondent’s disputed domain name leads to a website that features links to products that directly compete with Complainant’s products. The Panel determines that Respondent is attempting to mislead consumers as to Complainant’s affiliation with the disputed domain name, and Respondent likely profits from the resulting confusion. Therefore, the Panel finds evidence of bad faith pursuant to Policy ¶ 4(b)(iv).”). Complainant has provided the Panel with a screenshot of Respondent’s <ecolabsalessuport.com> domain name that show links to services related to Complainant’s business such as “Ecolab products” and “hand sanitizer. This is evidence that Respondent registered and used the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Complainant argues that Respondent engages in the practice of typosquatting by registering a domain name that differs by one letter, one less “p,” from Complainant’s legitimate <ecolabsalessupport.com> domain name. The practice of typosquatting occurs when a respondent registers a domain name that differs by one letter in hopes to confuse or misdirect internet users and may be evidence of bad faith per Policy ¶ 4(a)(iii). See Vanguard Trademark Holdings USA LLC v. Shuai Wei Xu / Xu Shuai Wei, FA 1784238 (Forum June 1, 2018) (finding the respondent engaged in typosquatting—and thus registered and used the at-issue domain names in bad faith—where the names consisted of the complainant’s mark with small typographical errors introduced therein), see also Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii).”). Complainant argues that Respondent removes “p” to create a visual similar domain name to its legitimate <ecolabsalessupport.com> domain name. The Panel finds that Respondent has engaged in the practice of typosquatting which is indicative of bad faith per Policy ¶ 4(a)(iii). The Panel finds Respondent registered and uses the domain name in bad faith.
Complainant has proved this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <ecolabsalessupport.com> domain name be TRANSFERRED from Respondent to Complainant.
______________________________________________________________
Hon. Karl V. Fink (Ret.) Panelist
August 15, 2020
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