DECISION

 

Ecolab USA Inc. v. Milen Radumilo

Claim Number: FA2401002079426

 

PARTIES

Complainant is Ecolab USA Inc. ("Complainant"), represented by Elizabeth Stafki of Pirkey Barber PLLC, Texas, USA. Respondent is Milen Radumilo ("Respondent"), Romania.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <ecolab.blog>, registered with Dynadot Inc.

 

PANEL

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.

 

Petter Rindforth as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on January 16, 2024; Forum received payment on January 16, 2024.

 

On January 19, 2024, Dynadot Inc confirmed by e-mail to Forum that the <ecolab.blog> domain name is registered with Dynadot Inc and that Respondent is the current registrant of the name. Dynadot Inc has verified that Respondent is bound by the Dynadot 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 January 25, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 14, 2024 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.blog. Also on January 25, 2024, 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 February 15, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Petter Rindforth 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 is a global leader in water, hygiene, and infection prevention solutions and services, covering more than 170 countries. Complainant has continuously used the ECOLAB trademark for over 30 years.

 

The disputed domain name is identical Complainant's ECOLAB trademark, as it consists solely of the well-known trademark ECOLAB.

 

The Respondent has no rights or legitimate interests in the domain name. Respondent has not used, nor made any demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services. The disputed domain name displays a pay-per-click parking page with links for goods or services that compete with, or are related to, those of Complainant or links that appear to refer to ECOLAB.

 

Respondent is not commonly known by the domain name at issue. In addition, Complainant has not licensed or otherwise permitted Respondent to use its ECOLAB mark, or any other mark owned by Complainant. Respondent is not making a legitimate noncommercial or fair use of the disputed domain name. Passively holding a domain name is not a legitimate noncommercial or fair use of the domain name.

 

Respondent registered and is using the domain name in bad faith. It is evident that Respondent knew of Complainant's well-known ECOLAB trademark based on Respondent's registration of a domain consisting solely of that trademark. The use of a privacy service to register the disputed domain name gives rise to a rebuttable presumption of Respondent's bad faith. Respondent should be found to have actual knowledge of Complainant's rights prior to registration due to the fame of the ECOLAB trademark.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Complainant is the owner of the following U.S. trademark registrations:

 

No. 3,965,037 ECOLAB (word), registered May 24, 2011 for goods in Intl Class 1;

No. 3,976,921 ECOLAB (word), registered June 14, 2011 for services in Intl Class 41;

No. 4,014,916 ECOLAB (word), registered August 23, 2011 for services in Intl Class 35;

No. 4,021,579 ECOLAB (word), registered September 6, 2011 for services in Intl Class 37; and

No. 4,152,481 ECOLAB (word), registered June 5, 2012 for services in Intl Class 42.

 

The disputed domain name <ecolab.blog> was registered on November 27, 2023.

 

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 Complainant claims rights to the ECOLAB trademark based upon registration with the USPTO. Registration with USPTO sufficiently establishes rights in a trademark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant's USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). Complainant provides copies of its USPTO registrations for the ECOLAB trademark (e.g., Reg. No. 3,965,037 registered May 24, 2011). Therefore, the Panel finds that Complainant has rights in the ECOLAB trademark per Policy ¶ 4(a)(i).

 

Complainant argues that the <ecolab.blog> domain name is identical with Complainant's ECOLAB trademark, as it consists solely of the trademark ECOLAB.

 

The relevant part of the disputed domain name is <ecolab>, as the added top-level domain – being a required element of every domain name – is generally irrelevant when assessing whether or not a trademark is identical or confusingly similar and in this case does nothing to distinguish the disputed domain name from the Complainant's trademark.

 

The Examiner concludes that the disputed domain name is identical to the Complainant's trademark ECOLAB.

 

Rights or Legitimate Interests

Once the Complainant makes a prima facie case in support of its allegations in respect of the second element of the Policy, the burden shifts to the Respondent to show that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) ("Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names."); see also Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).

 

Complainant argues that Respondent does not have rights or legitimate interests in the <ecolab.blog> domain name because Respondent is not licensed or authorized to use Complainant's ECOLAB trademark and is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA 1613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists "Dale Anderson" as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Additionally, lack of authorization to use a complainant's trademark may indicate that the respondent is not commonly known by the disputed 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 WHOIS information for the disputed domain name lists the registrant as "Milen Radumilo." Therefore, the Panel find that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).

 

As noted by the Complainant, the disputed domain name displays a pay-per-click parking page with links for goods or services that compete with, or are related to, those of Complainant or links that appear to refer to ECOLAB.

 

A respondent's use of a disputed domain name to host hyperlinks to a complainant and its competitors is not a bona fide offering of goods or services or legitimate noncommercial or fair use per under Policy ¶ 4(c)(i) or (iii). See The Toronto-Dominion Bank v. GEORGE WASHERE, FA 1785311 (Forum June 7, 2018) ("Respondent's confusingly similar <esecuretdbank.com> domain name references a website displaying links to competing third parties as well as links to Complainant and various unrelated third parties. Using the domain name in this manner shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)."). Complainant provides screenshots of Respondent's web site connected to the disputed domain name which purportedly hosts hyperlinks to Complainant and its competitors.

 

The Panel therefore clearly finds that Respondent fails to make a bona fide offering of goods or services, nor a legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii).

 

Registration and Use in Bad Faith

Complainant argues that Respondent knew or should have known ("actual or constructive knowledge") of Complainant's trademark ECOLAB at the time of the registration of <ecolab.blog> and therefore Respondent registered and used the domain name in bad faith. The Panel agrees in this assumption. It can be no coincidence that Respondent registered a domain name that is identical to the ECOLAB trademark. Registration of a domain name that is confusingly similar to another's trademark, despite knowledge of the trademark holder's rights, is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Digi Int'l v. DDI Sys., FA 124506 (Forum Oct. 24, 2002) ("there is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant's trademarks, actually or constructively").

 

A further evidence of Respondent's knowledge of Complainant's trademarks is the fact that the disputed domain name is being directed to a pay-per-click parking page with links for goods or services that compete with, or are related to, those of Complainant or links that appear to refer to ECOLAB. The Panel finds it obvious that Respondent has intentionally created a likelihood of confusion as to Complainant's affiliation or endorsement of the disputed domain name for commercial gain via affiliate fees.

 

Finally, Respondent has noted on the related web page that <ecolab.blog> is for sale. An online offer to sell the domain name indicates that an intention of registering <ecolab.blog> has been to sell it to the Complainant for a presumed amount exceeding Respondent's out-of-pocket costs directly related to the registration of the same. See Am. Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Forum Mar. 16, 2000) (finding bad faith where the respondent offered domain names for sale).

 

The Panel concludes that Respondent registered and has been using the disputed domain name in bad faith.

 

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 <ecolab.blog> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Petter Rindforth, Panelist

Dated: February 29, 2024