DECISION

 

eComEngine, LLC v. eerer ererer

Claim Number: FA2407002108286

 

PARTIES

Complainant is eComEngine, LLC ("Complainant"), represented by Thomas L. Bowden, Sr. of Timeless Counsel, PLC, Virginia, USA. Respondent is eerer ererer ("Respondent"), Philippines.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <ecomengine2.com>, ('the Domain Name') registered with NameSilo, 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 July 26, 2024; Forum received payment on July 26, 2024.

 

On July 30, 2024, NameSilo, LLC confirmed by e-mail to Forum that the <ecomengine2.com> Domain Name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 August 5, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 26, 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@ecomengine2.com. Also on August 5, 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 August 27, 2024 vpursuant 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's contentions can be summarised as follows:

The Complainant is the owner of the eComEngine mark, registered, inter alia, in the United States for software relating to product reviews since 2018, with first use recorded as 2008.

 

The Domain Name registered in 2024 is confusingly similar to the Complainant's trade mark adding only the generic number '2' and the gTLD .com none of which prevents the said confusing similarity.

 

The Respondent has no rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant.

 

The Domain Name is being used for a page appearing to be an official site of the Complainant using its mark in its logo form as a masthead complete with a log in screen. The Complainant has received reports that the site has been used to confuse Internet users that the site is affiliated with the Complainant, refunds being refused when the customers realise their mistake. The Complainant assists businesses to manage legitimate product reviews and the Respondent is offering competing services which seek to train people how to make money from creating fake product reviews. This does not constitute a bona fide offering of goods or services or a legitimate non commercial or fair use. It is registration and use in bad faith diverting and consuming Internet users for commercial gain and disrupting the Complainant's business.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Complainant is the owner of the eComEngine mark, registered, inter alia, in the United States for software relating to product reviews since 2018 with first use recorded as 2008.

 

The Domain Name registered in 2024 is being used for a page appearing to be an official site of the Complainant using the Complainant's mark in its logo form as a masthead complete with a log in screen.

 

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 the Complainant's eComEngine mark (which is registered, inter alia, in the USA for software relating to product reviews since 2018 with first use recorded as 2018), the generic number '2' and the gTLD .com.

 

Previous panels have found confusing similarity when a respondent merely adds a generic number to a Complainant's mark.  See Nintendo of Am., Inc. v. Lizmi, FA 94329 (Forum Apr. 24, 2000). Accordingly, the Panel holds that the addition of the generic number '2' to the Complainant's trade mark in the Domain Name does not prevent confusing similarity between the Domain Name and the Complainant's mark.

 

A gTLD does not serve to distinguish a domain name from a 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 to the Complainant's registered mark.

 

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 and so is not legitimate non commercial fair use.

 

The web site attached to the Domain Name bears a page appearing to be an official site of the Complainant using the Complainant's mark and logo as a masthead complete with a log in screen. The Complainant says it has received reports from Internet users that were confused into believing that they were dealing with the Complainant when they were dealing with the Respondent instead and that Respondent took advantage of this confusion and used the Domain Name to offer competing services not connected with the Complainant, however no evidence of actual confusion or the offering of competing services has been included in the Complaint. Nevertheless, the use to point to a log in screen under the mark and logo of the Complainant is prima facie confusing and strongly suggests that the site is affiliated with the Complainant. Panels have held that use of a domain name to mimic a Complainant is not a bona fide offering of services. See iFinex Inc. v Yuri Heifetz/Genie-Solution, FA 1789385 (Forum July 9, 2018)(holding that the respondent's mimicking the complainant in order to cause existing or potential customers of the complainant to believe they are dealing with the complainant is prima facie evidence of the respondent's lack of rights and legitimate interests in the disputed domain name).

 

The Domain Name also appears to be a typosquatting registration differing from the Complainant's mark and its url by one single number '2'. Typosquatting is an indication 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 this 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

The Domain Name seeks to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use and disruption of the Complainant's business. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the Complainant's mark and be taken to the Respondent's site is registration and use in bad faith). Typosquatting also indicates the Respondent had knowledge of the Complainant and its rights. See InfoSpace, Inc. v. Greiner, FA 227653 (Forum Mar. 8, 2004) ("Such a domain name evidences actual knowledge of the underlying mark prior to the registration of the domain name, and as Respondent failed to submit any evidence to counter this inferrence [sic], Respondent's actions evidence bad faith registration of the disputed domain name.").

 

Further, in the opinion of the panelist the use made of the Domain Name in relation to the Respondent's 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 uses the Complainant's mark and logo as a masthead for a log in screen. Use of the Complainant's logo also shows that the Respondent is aware of the Complainant and its rights, business and services.

 

Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site under Policy 4 (b)(iv) likely to disrupt the business of the Complainant under Policy 4 (b)(iii). See  Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith where Respondent registered and used a domain name in bad faith by directing Internet users to a website that purports to be a website of the Complainant in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant).

 

As such, the Panelist believes 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 <ecomengine2.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Dawn Osborne, Panelist

Dated: August 27, 2024