Emerson Electric Co. v. Mariusz Kowalczyk
Claim Number: FA1802001770167
Complainant is Emerson Electric Co. ("Complainant"), Missouri, USA. Respondent is Mariusz Kowalczyk ("Respondent"), Poland.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <emersonprocesspl.com>, registered with NameCheap, Inc.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 1, 2018; the Forum received payment on February 1, 2018.
On February 2, 2018, NameCheap, Inc. confirmed by email to the Forum that the <emersonprocesspl.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 February 2, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 22, 2018 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@emersonprocesspl.com. Also on February 2, 2018, the Written Notice of the Complaint, notifying Respondent of the email 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 February 26, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 provides products and services to the industrial, commercial, and consumer markets. Complainant was established as Emerson Electric Manufacturing Co. in 1890 and now has approximately 81,420 employees and 155 manufacturing locations around the world. Complainant owns trademark registrations for EMERSON and EMERSON PROCESS MANAGEMENT in the United States and the European Union. Complainant operates in Poland under the name Emerson Process Management Sp. Z o.o.
Respondent registered the disputed domain name <emersonprocesspl.com> on June 14, 2017. The disputed domain name redirects Internet users to a page on Complainant's website. Complainant asserts that Respondent has configured this redirection in order to deceive Internet users into believing that the domain name is associated with Complainant. Complainant states that Respondent is not sponsored by or affiliated with Complainant in any way; that Complainant has not given Respondent permission to use its trademarks; and that Respondent is not commonly known by the disputed domain name.
Complainant contends on the above grounds that the disputed domain name <emersonprocesspl.com> is identical or confusingly similar to a mark in which Complainant has rights; that Respondent has no rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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.").
The disputed domain name <emersonprocesspl.com> incorporates Complainant's registered mark EMERSON and most of its registered mark EMERSON PROCESS MANAGEMENT, adding the geographic abbreviation "pl" and the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's marks. See, e.g., Atalaya Capital Management LP v. Evocreative / Subject to ICANN UDRP Dispute, D2013-1265 (WIPO Sept. 20, 2013) (finding <atalaya-capital.com> confusingly similar to ATALAYA and ATALAYA CAPITAL MANAGEMENT LP); Sun Microsystems, Inc. v. Dilma Aedo Mendez c/o Libela Gestion Sms & Libela Gestion sms LTDA c/o Dilma Aedo, FA 1293581 (Forum Jan. 4, 2010) (finding <openoffice-pl.com> confusingly similar to OPENOFFICE.ORG). The Panel therefore considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's mark without authorization, and its sole apparent use has been to redirect Internet users to a page on Complainant's own website. Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location." The instances set forth in paragraph 4(b) are illustrative rather than exhaustive, and bad faith may be found based upon other circumstances in appropriate cases. See Robert Half International Inc. v. Mark Schacht, FA 1622554 (Forum July 8, 2015).
In the Panel's view, Respondent's registration and use of a domain name incorporating Complainant's marks, in a manner seemingly calculated to create confusion -- and without any plausible alternative explanation -- are indicative of bad faith for purposes of, at least, paragraph 4(b)(iv) of the Policy. See, e.g., Robert Half International Inc., supra (finding registration and use in bad faith, where domain name was redirected to complainant's own website without explanation). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <emersonprocesspl.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: February 28, 2018
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