Ecolab, Inc. v. Ivan Dimitrov Monev
Claim Number: FA0704000956520
Complainant is Ecolab, Inc. (“Complainant”), represented by Gregory
Golla, of Merchant & Gould P.C., 3200 IDS
Center,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <ecolab-bg.com>, registered with Onlinenic, 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.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 9, 2007; the National Arbitration Forum received a hard copy of the Complaint on April 10, 2007.
On
On April 20, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 10, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@ecolab-bg.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s <ecolab-bg.com> domain name is confusingly similar to Complainant’s ECOLAB mark.
2. Respondent does not have any rights or legitimate interests in the <ecolab-bg.com> domain name.
3. Respondent registered and used the <ecolab-bg.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Ecolab, Inc., is a leading developer and marketer of cleaning and sanitizing products and services. In connection with the provision of these services, Complainant has registered a number of trade and service marks with the United States Patent and Trademark Office (“USPTO”) including the ECOLAB mark (Reg. No. 1,539,982 issued May 23, 1989).
Respondent registered the disputed domain name on
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."
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(e), 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 (Nat. Arb. 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.”).
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.
Complainant asserts rights in the ECOLAB mark through
registration with the USPTO. The Panel
finds that Complainant’s timely registration and subsequent extensive use of
the mark establishes rights in the mark pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP
Servs., FA 221171 (Nat. Arb. Forum
Respondent’s <ecolab-bg.com>
domain name contains Complainant’s mark in its entirety, adds a hyphen, the
country code identifier “bg” and the generic top-level domain (“gTLD”) “.com.” The Panel finds that the addition of a
hyphen, country code identifier and a gTLD fails to distinguish the domain name
from the mark pursuant to Policy ¶ 4(a)(i).
See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000)
(finding <pomellato.com> identical to the complainant’s mark because the
generic top-level domain (gTLD) “.com” after the name POMELLATO is not
relevant); see also Health Devices Corp. v.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks all rights and legitimate interests in the <ecolab-bg.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to show that it does possess rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”).
Respondent’s disputed domain name resolves to a website featuring Complainant’s products and products that directly compete with Complainant’s products. The Panel finds that Respondent’s use of the disputed domain name is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Nike, Inc. v. Dias, FA 135016 (Nat. Arb. Forum Jan. 7, 2002) (finding no bona fide offering of goods or services where the respondent used the complainant’s mark without authorization to attract Internet users to its website, which offered both the complainant’s products and those of the complainant’s competitors); see also Pitney Bowes Inc. v. Ostanik, D2000-1611 (WIPO Jan. 24, 2001) (finding no rights or legitimate interests in the <pitneybowe.com> domain name where the respondent purports to resell original Pitney Bowes equipment on its website, as well as goods of other competitors of the complainant).
Complainant contends that Respondent is not commonly known
by the disputed domain name. A review of
Respondent’s WHOIS information reveals that the registrant of the <ecolab-bg.com> domain name is “Ivan
Dimitrov Monev.” In the absence of
evidence to the contrary, the Panel finds that Respondent is not commonly known
by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720
(Nat. Arb. Forum
The Panel finds that Policy ¶
4(a)(ii) has been satisfied.
Respondent’s disputed domain name resolves to a website
featuring products that compete with Complainant’s business. The Panel finds that such use amounts to a
disruption of Complainant’s business, which demonstrates registration and use
in bad faith pursuant to Policy ¶ 4(b)(iii).
See EBAY, Inc. v. MEOdesigns,
D2000-1368 (WIPO
The Panel infers that Respondent enjoys financial benefit from the intentional misdirection of unsuspecting Internet users to its commercial website. The Panel finds that this establishes registration and use in bad faith pursuant to Policy ¶ 4(b)(iv). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent’s use of the <saflock.com> domain name to offer goods competing with the complainant’s illustrates the respondent’s bad faith registration and use of the domain name within the meaning of Policy ¶ 4(b)(iv)); see also Busy Body, Inc. v. Fitness Outlet, Inc., D2000-0127 (WIPO Apr. 22, 2000) (finding bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent and the complainant were in the same line of business and the respondent was using a domain name confusingly similar to the complainant’s FITNESS WAREHOUSE mark to attract Internet users to its <efitnesswarehouse.com> domain name).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
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-bg.com> domain name be TRANSFERRED from Respondent to Complainant.
Dated: May 29, 2007
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