DECISION

 

Ecore International Inc. v. Juan Carlos / Durian Ventures Corp

Claim Number: FA2310002064992

 

PARTIES

Complainant is Ecore International Inc. ("Complainant"), represented by Sophie Edbrooke of Gerben Perrott, PLLC, District of Columbia, USA. Respondent is Juan Carlos / Durian Ventures Corp ("Respondent"), British Virgin Islands.

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <ecosurface.com> ('the Domain Name'), registered with Sea Wasp, LLC.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Dawn Osborne as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on October 5, 2023; Forum received payment on October 5, 2023.

 

On October 6, 2023, Sea Wasp, LLC confirmed by e-mail to Forum that the <ecosurface.com> Domain Name is registered with Sea Wasp, LLC and that Respondent is the current registrant of the name. Sea Wasp, LLC has verified that Respondent is bound by the Sea Wasp, 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 October 9, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 30, 2023 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@ecosurface.com. Also on October 9, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.

 

On October 31. 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the Domain Name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.       Complainant

 

The Complainant owns the trade mark ECOSURFACES registered in the USA with first use recorded as 1999 for flooring. It has owned ECOSURFACES.com since 1999.

 

The Domain Name registered in 2005 is confusingly similar to the Complainant's ECOSURFACES mark omitting only the single letter 's' and adding the gTLD .com which do not prevent said confusing similarity.

 

The Respondent does not have any rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant.

 

The Domain Name has been used for competing pay per click links which is not a bona fide offering of goods or services or a legitimate non commercial or fair use. It is opportunistic registration and use in bad faith causing confusion amongst Internet users for commercial gain.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Complainant owns the trade mark ECOSURFACES registered in the USA with first use recorded as 1999 for flooring. It has owned ECOSURFACES.com since 1999.

 

The Domain Name registered in 2005 has been used for competing pay per click links related to flooring.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

The Domain Name consists of a misspelling of the Complainant's ECOSURFACES mark (registered in the USA for flooring with first use recorded as 1999) and the gTLD .com.

 

The Panel agrees that misspellings such as omission of a letter does not distinguish the Domain Name from the Complainant's trade mark pursuant to the Policy. See Twitch Interactive Inc. v Zhang qin, FA 1626511 (Forum Aug 4, 2015).

 

The gTLD .com does not serve to distinguish the Domain Name from the Complainant's mark. See Red Hat Inc v Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).

 

Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to a mark in which the Complainant has rights.

 

As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.

 

Rights or Legitimate Interests

The Complainant has not authorised the use of its mark. There is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA 1574905 (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).The use of the Domain Name is commercial so it is not legitimate non commercial fair use.

 

The Respondent has used the site attached to the Domain Name to link to a third party business that competes with the Complainant. It does not make it clear that there is no commercial connection with the Complainant. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services or a legitimate non commercial or fair use. See Ashley Furniture Industries Inc v domain admin /private registrations aitken Gesellschaft, FA 1626253 (Forum July 29, 2015) (linking to pay per click links does not amount to a bona fide offering of goods and services or a legitimate non commercial fair use).

 

The Domain Name differs from the Complainant's prior domain name registration by one letter and appears to be a typosquatting registration. Typosquatting is  also indicative of a lack of rights or legitimate interests. See Chegg Inc. v. yang qijin, FA 1610050 (Forum Apr. 23, 2015) ("Users might mistakenly reach Respondent's resolving website by misspelling Complainant's mark.  Taking advantage of Internet users' typographical errors, known as typosquatting, demonstrates a respondent's lack of rights or legitimate interests under Policy ¶ 4(a)(ii).").

 

The Respondent has not answered the Complaint or rebutted the prima facie case evidenced by the Complainant as set out herein.

 

As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.

 

Registration and Use in Bad Faith

In the opinion of the panelist the use made of the Domain Name in relation to the site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it links to competing services/products under a domain name confusingly similar to the Complainant's mark. The use for this purpose makes it more likely than not that the Respondent is aware of the Complainant and its business, services and rights. . See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) ("Respondent's prior knowledge is evident from the notoriety of Complainant's BITFINEX trademark as well as from Respondent's use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant"). Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site or services/products offered on it likely to disrupt the business of the Complainant. See Health Republic Insurance Company v Above.comLegal, FA 1622088 (Forum July 10, 2015) re diversion to pay per click links.

 

Additionally Typosquatting is an indication of bad faith per se. See Cost Plus Management Services, Inc. v. xushuaiwei, FA 1800036 (Forum Sept. 7, 2018) ("Typosquatting itself is evidence of relevant bad faith registration and use.").

 

As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under Paragraphs 4(b)(iii) and (iv).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <ecosurface.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Dawn Osborne, Panelist

Dated: October 31, 2023