DECISION

 

Ecolab USA Inc. v. Expired domain caught by auction winner.***Maybe for sale on Dynadot Marketplace*** / web master

Claim Number: FA2401002080216

 

PARTIES

Complainant is Ecolab USA Inc. ("Complainant"), United States, represented by Danae T. Robinson of Pirkey Barber PLLC, United States. Respondent is Expired domain caught by auction winner.***Maybe for sale on Dynadot Marketplace*** / web master ("Respondent"), Hong Kong.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <ecolabvirtualassistant.com>, 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.

 

David E. Sorkin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on January 22, 2024; Forum received payment on January 22, 2024.

 

On January 23, 2024, Dynadot Inc confirmed by email to Forum that the <ecolabvirtualassistant.com> 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 24, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 13, 2024 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@ecolabvirtualassistant.com. Also on January 24, 2024, 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, Forum transmitted to the parties a Notification of Respondent Default.

 

On February 14, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin 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

Complainant provides water, hygiene, and infection prevention solutions and services. Complainant has 47,000 employees and serves customers in more than 170 countries. Complainant has used the ECOLAB mark in connection with its products and services for more than 30 years, and owns several United States trademark registrations for ECOLAB in standard character form. Complainant also uses related marks including ECOLAB VIRTUAL ASSISTANT, and has a pending application to register that mark.

 

The disputed domain name <ecolabvirtualassistant.com> was registered in September 2023, a few days after Complainant filed its trademark application for ECOLAB VIRTUAL ASSISTANT. The domain name is registered in the name of a privacy registration service on behalf of Respondent. The domain name redirects Internet users to a domain name marketplace that offers it for sale for $2,588. Complainant states that Respondent is not commonly known by the domain name and is not authorized to use Complainant's marks.

 

Complainant contends on the above grounds that the disputed domain name <ecolabvirtualassistant.com> is identical or confusingly similar to its ECOLAB and ECOLAB VIRTUAL ASSISTANT marks; that Respondent lacks 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.

 

FINDINGS

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.

 

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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").

 

Identical and/or Confusingly Similar

The disputed domain name <ecolabvirtualassistant.com> incorporates Complainant's registered ECOLAB trademark, adding the generic terms "virtual" and "assistant" and the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Ecolab USA Inc. v. DOMAIN ADMINISTRATOR / Buy this domain on Dan.com ----, FA 2073861 (Forum Dec. 28, 2023) (finding <ecolabreadydose.com> confusingly similar to ECOLAB); Ecolab USA Inc. v. Expired domain caught by auction winner.***Maybe for sale on Dynadot Marketplace*** / web master, FA 2066081 (Forum Nov. 20, 2023) (finding <ecolabwatermark.com> confusingly similar to ECOLAB); Twitter, Inc. v. qwewqqwwqe et. al., FA 1992610 (Forum May 27, 2022) (finding <twitter-assistant.com> confusingly similar to TWITTER); Amazon Technologies, Inc. v. Ivan Villanueva Rech, FA 1842407 (Forum June 24, 2019) (finding <marketprimevirtual.com> confusingly similar to PRIME). The Panel considers the disputed domain name to be confusingly similar to Complainant's registered ECOLAB mark, and therefore need not consider whether Complainant has demonstrated trademark rights in ECOLAB VIRTUAL ASSISTANT.

 

Rights or Legitimate Interests

Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).

 

The disputed domain name incorporates Complainant's registered mark without authorization. The only apparent use to which the domain name has been put is to redirect Internet users to a marketplace at which the domain name is offered for sale. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Ecolab USA Inc. v. DOMAIN ADMINISTRATOR / Buy this domain on Dan.com ----, FA 2073861, supra (finding lack of rights or interests in similar circumstances); Ecolab USA Inc. v. Expired domain caught by auction winner.***Maybe for sale on Dynadot Marketplace*** / web master, FA 2066081, supra (same); Amazon Technologies, Inc. v. Ivan Villanueva Rech, supra (same).

 

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.

 

Registration and Use in Bad Faith

Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(i) of the Policy, bad faith may be shown by evidence that a domain name was acquired "primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent's] documented out-of-pocket costs directly related to the domain name." 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."

 

Respondent used a privacy registration service and what appears to be incomplete underlying registration information to register a domain name incorporating Complainant's registered mark, doing so only a few days after Complainant applied to register a mark corresponding almost exactly to the domain name. Respondent appears to have used the domain name for the sole purpose of promoting it for sale. Such circumstances are indicative of bad faith registration and use under the Policy. See, e.g., Ecolab USA Inc. v. DOMAIN ADMINISTRATOR / Buy this domain on Dan.com ----, FA 2073861, supra (finding bad faith registration and use in similar circumstances); Ecolab USA Inc. v. Expired domain caught by auction winner.***Maybe for sale on Dynadot Marketplace*** / web master, FA 2066081, supra (same). The Panel so finds.

 

DECISION

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

 

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

 

 

 

David E. Sorkin, Panelist

Dated: February 15, 2024