Ecolab USA Inc. v. bubu bubulico
Claim Number: FA2001001879346
Complainant is Ecolab USA Inc. (“Complainant”), represented by Elizabeth M. Stafki, Texas, United States. Respondent is bubu bubulico (“Respondent”), Unknown.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <eecolab.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 17, 2020; the Forum received payment on January 17, 2020.
On January 18, 2020, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <eecolab.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 January 20, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 10, 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@eecolab.com. Also on January 20, 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 February 14, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is the global leader in water, hygiene, and energy technology and services that protect people and vital services. Complainant’s 49,000 associates work to deliver comprehensive solutions, data-driven insights and on-site service to promote safe food, maintain clean environments, optimize water and energy use, and improve operational efficiencies for customers in the food, healthcare, energy, hospitality and industrial markets in more than 170 countries. Many of the world’s most recognizable brands rely on Complainant to help ensure operational efficiencies, product integrity and brand reputation. Complainant has rights in the ECOLAB mark through its registration in the United States in 1989.
Complainant alleges that the disputed domain name is confusingly similar to its ECOLAB mark as it includes the mark in its entirety, adding an extra “e” and the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not authorized to use Complainant’s mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name in connection with a fraudulent e-mail phishing scheme. Furthermore, Respondent’s disputed domain name resolves to an inactive webpage. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Specifically, Respondent uses the disputed domain name to pass off as Complainant in connection with a fraudulent e-mail phishing scheme. Also, Respondent includes false contact information in the WHOIS database. Further, Respondent engages in typosquatting. Finally, Respondent had actual knowledge of Complainant’s rights in the ECOLAB mark prior to its registration of the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark ECOLAB and uses it to market a variety of products and services the for water, hygiene, and energy sectors.
Complainant’s rights in its marks date back to at least 1989.
The disputed domain name was registered in 2019.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name is used for a fraudulent e-mail phishing scheme; the signature block of the fraudulent e-mail displays Complainant’s mark and legitimate business address. The WHOIS information is false.
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”).
The disputed domain name includes Complainant’s mark in its entirety, merely adding an extra “e” and the “.com” gTLD. Addition of a single letter and a gTLD is not sufficient to distinguish a domain name for purposes of Policy ¶ 4(a)(i). See Enterprise Holdings, Inc. v. Tynia Coleman / New Life Family Ministries, FA 1333282 (Forum Aug. 10, 2010) (holding that “the mere addition of the letter ‘e’ and a gTLD to a registered trademark generates confusing similarity between the disputed domain name and Complainant’s mark under Policy ¶ 4(a)(i)). Accordingly, the Panel finds that the <eecolab.com> domain name is confusingly similar to Complainant’s ECOLAB mark pursuant to Policy ¶ 4(a)(i).
Respondent is not licensed or otherwise authorized to use Complainant’s ECOLAB mark. Respondent is not commonly known by the disputed domain name: where a response is absent, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). Here, the WHOIS information of record lists the registrant as “bubu bubulico.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per ¶ 4(c)(ii).
Respondent uses the disputed domain name in furtherance of a fraudulent email phishing scheme. Specifically, Complainant provides screenshots of e-mail correspondence, in which Respondent used the disputed domain name in an e-mail address to impersonate one of Complainant’s employees, a credit controller, and asked Complainant’s customer to remit payment to a bank account not affiliated with Complainant. A respondent’s use of a disputed domain name in connection with a fraudulent e-mail phishing scheme is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) (“On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii).”); see also Chevron Intellectual Property LLC v. Thomas Webber / Chev Ronoil Recreational Sport Limited, FA 1661076 (Forum Mar. 15, 2016) (finding that the respondent had failed to provide a bona fide offering of goods or services or any legitimate noncommercial or fair use, stating, “Respondent is using an email address to pass themselves off as an affiliate of Complainant. Complainant presents evidence showing that the email address that Respondent has created is used to solicit information and money on false pretenses. The disputed domain name is being used to cause the recipients of these emails to mistakenly believe Respondent has a connection with Complainant and is one of the Complainant’s affiliates.”). Accordingly, the Panel finds that Respondent fails to use the disputed domain to make a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name in e-mails to pass off as Complainant’s employee and corresponds with Complainant’s customers to seek payment to a bank account not affiliated with Complainant. A respondent’s use of a disputed domain name to pass off as a complainant in furtherance of a fraudulent e-mail phishing scheme is evidence of bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”); see also Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the Respondent’s use of the disputed domain names to send fraudulent emails supported a finding of bad faith registration and use under Policy ¶ 4(b)(iii)). Accordingly, the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv).
Further, Respondent provided false contact information on the WHOIS database. Specifically, Respondent provided its address as “12 kings road, Los angeles, carlifornia [sic] 90011”; however, there does not appear to be a Kings Road with the zip code 90011. A respondent’s providing false WHOIS information may be evidence of bad faith pursuant to Policy ¶ 4(a)(iii). See Farouk Systems, Inc. v. Jack King / SLB, FA1505001618704 (Forum June 19, 2015) (finding bad faith registration and use pursuant to Policy ¶ 4(a)(iii) where the respondent had provided false contact information when registering the disputed domain name). Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii).
Further, Respondent engages in typosquatting: the disputed domain name merely adds the letter “e” to Complainant’s mark. Typosquatting is evidence of bad faith pursuant to Policy ¶ 4(a)(iii). See Homer TLC, Inc. v. Artem Ponomarev, FA1506001623825 (Forum July 20, 2015) (“Finally, under this head of the Policy, it is evident that the <homededpot.com> domain name is an instance of typosquatting, which is the deliberate misspelling of the mark of another in a domain name, done to take advantage of common typing errors made by Internet users in entering into a web browser the name of an enterprise with which they would like to do business online. Typosquatting is independent evidence of bad faith in the registration and use of a domain name.”); see also Under Armour, Inc. v. JEFF RANDALL, FA1410001585022 (Forum Nov. 18, 2014) (finding that the respondent’s <unerarmour.com> domain name constitutes typosquatting of the complainant’s UNDER ARMOUR mark, which is evidence of bad faith pursuant to Policy ¶ 4(a)(iii)). Accordingly, the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii) on this ground also.
Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the signature block of the fraudulent e-mail displays Complainant’s mark and legitimate business address. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <eecolab.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: February 14, 2020
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