Ecolab USA Inc. v. Zhao Zhong Xian
Claim Number: FA1703001723687
Complainant is Ecolab USA Inc. (“Complainant”), represented by Elizabeth M. Stafki, Texas, USA. Respondent is Zhao Zhong Xian (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ecolab.website>, registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn).
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 24, 2017; the Forum received payment on March 24, 2017. The Complaint was received in both Chinese and English.
On March 28, 2017, Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) confirmed by e-mail to the Forum that the <ecolab.website> domain name is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) and that Respondent is the current registrant of the name. Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) has verified that Respondent is bound by the Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) 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 April 3, 2017, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of April 24, 2017 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@ecolab.website. Also on April 3, 2017, the Chinese language 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 April 27, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (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, Ecolab USA Inc., is global leader in water, hygiene and energy technology based in St. Paul, Minnesota. Complainant uses the ECOLAB mark to promote its goods and services. Complainant has rights in the ECOLAB mark through its multiple registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,497,423, registered Jul. 26, 1988) and the Chinese State Administration for Industry and Commerce (“SAIC”) (e.g., Reg. No. 8814363, registered Nov. 21, 2011). Respondent’s domain name, <ecolab.website>, is identical or confusingly similar to Complainant’s ECOLAB mark as it contains the mark in its entirety and appends the generic top level domain (“gTLD”) “.website.”
Respondent has no rights or legitimate interests in <ecolab.website>. Respondent has not been commonly known by <ecolab.website> and has failed to use the disputed domain name for a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, <ecolab.website> does not resolve to an active website.
Respondent should be considered to have registered and used <ecolab.website> in bad faith. Respondent has engaged in a pattern of bad faith registration and use of domain names identical to the marks of others. Further, Respondent inactively holds the domain name—evidence supporting a finding of bad faith per Policy ¶ 4(a)(iii).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Ecolab USA Inc., is global leader in water, hygiene and energy technology. Complainant uses the ECOLAB mark to promote its goods and services. Complainant has rights in the ECOLAB mark through its multiple registrations with the USPTO (e.g., Reg. No. 1,497,423, registered Jul. 26, 1988) and the SAIC (e.g., Reg. No. 8814363, registered Nov. 21, 2011). Respondent’s domain name, <ecolab.website>, is identical to Complainant’s ECOLAB mark.
Respondent, Zhao Zhong Xian, created <ecolab.website> on November 29, 2016.
Respondent has no rights or legitimate interests in <ecolab.website>. Respondent’s <ecolab.website> domain name does not resolve to an active website.
Respondent registered and used <ecolab.website> in bad faith.
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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Language of the Proceedings
The Registration Agreement is written in Chinese, thereby making the language of the proceedings in Chinese. Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant has rights in the ECOLAB mark under Policy ¶ 4(a)(i) through its multiple registrations with the USPTO and SAIC (e.g., Reg. No. 8814363, registered Nov. 21, 2011). See Fossil Group, Inc. v. wuruima wu, FA 1544486 (Forum Mar. 21, 2014) (holding, “Complainant’s registration of the FOSSIL mark with trademark agencies worldwide, including the USPTO and SAIC, establishes Complainant’s rights in the FOSSIL mark pursuant to Policy ¶ 4(a)(i).”).
Respondent’s domain name, <ecolab.website>, is identical to Complainant’s ECOLAB mark as it contains the mark in its entirety and appends the gTLD “.website.”
Respondent lacks rights and legitimate interests in the domain name as Respondent has not been commonly known by <ecolab.website> under Policy ¶ 4(c)(ii). Where a response is lacking, the WHOIS information can support a finding that a respondent is not commonly known by a domain name. See Amazon Technologies, Inc. v. Timothy Mays aka Linda Haley aka Edith Barberdi, FA1504001617061 (Forum Jun. 9, 2015) (concluding that the respondent was not commonly known by the <amazondevice.org>, <amazondevices.org> and <buyamazondevices.com> domain names under Policy ¶ 4(c)(ii), as the pertinent WHOIS information identified “Timothy Mays,” “Linda Haley,” and “Edith Barberdi” as registrants of the disputed domain names). The WHOIS information lists the registrant of <ecolab.website> as “Zhao Zhong Xian.”
Respondent has failed to use the disputed domain name for a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Failure to make demonstrable preparations to use a disputed domain name supports a finding that a respondent lacks rights and legitimate interests in the disputed domain name per Policy ¶¶ 4(c)(i) & (iii). See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”).
Respondent has engaged in a pattern of bad faith registration and use. Other complainants have recently prevailed in UDRP proceedings against Respondent. See U.S. Smokeless Tobacco Company LLC v. Zhao Zhong Xian, FA1710836 (NAF Feb. 14, 2017); Compagnie De Saint-Gobain v. Zhao Zhong Xian, D20162120 (WIPO Nov. 29, 2016); Arcelormittal S.A. v. Zhao Zhong Xian, D20161950 (WIPO Nov. 22, 2016). Past conduct of a respondent can establish a disputed domain name is part of a pattern of bad faith registration and use per Policy ¶ 4(b)(ii). See Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA1209001464477 (Forum Nov. 30, 2012) (finding where the record reflected that the respondent had been a respondent in other UDRP proceedings in which it was ordered to transfer disputed domain names established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)).
Respondent had actual knowledge of Complainant’s ECOLAB mark when Respondent registered and used <ecolab.website>. Therefore, Respondent registered and used <ecolab.website> in bad faith per Policy ¶ 4(a)(iii). See InfoSpace, Inc. v. Greiner, FA 227653 (Forum Mar. 8, 2004) (“Respondent’s domain name is a simple and popular variation of a trademark commonly used by typosquatters – the addition of the “www” prefix to a known trademark, in this case the DOGPILE mark. Such a domain name evidences actual knowledge of the underlying mark prior to the registration of the domain name, and as Respondent failed to submit any evidence to counter this inferrence [sic], Respondent’s actions evidence bad faith registration of the disputed domain name.”).
Respondent’s failure to make an active use of <ecolab.website> shows bad faith registration and use under Policy ¶ 4(a)(iii). See Am. Broad. Cos., Inc. v. Sech, FA 893427 (Forum Feb. 28, 2007) (concluding that the respondent’s failure to make active use of its domain name in the three months after its registration indicated that the respondent registered the disputed domain name in bad faith).
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 <ecolab.website> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: May 10, 2017
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