Ecolab USA Inc. v. Chen Guolong
Claim Number: FA2207002005172
Complainant is Ecolab USA Inc. (“Complainant”), represented by Kimberly Arriola, Virginia, USA. Respondent is Chen Guolong (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ecolabco.com>, (‘the Domain Name’) registered with Xiamen Domains, Inc..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 21, 2022; the Forum received payment on July 21, 2022. The Complaint was received in both Chinese and English.
On July 27, 2022, Xiamen Domains, Inc. confirmed by e-mail to the Forum that the <ecolabco.com> Domain Name is registered with Xiamen Domains, Inc. and that Respondent is the current registrant of the name. Xiamen Domains, Inc. has verified that Respondent is bound by the Xiamen Domains, 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 July 28, 2022, the Forum served the Chinese language Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of August 17, 2022 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@ecolabco.com. Also on July 28, 2022, the Chinese and English language 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 August 19, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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.
PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDINGS
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
A. Complainant
The Complainant is the owner of the mark ECOLAB registered, inter alia in the USA for water treatment related goods and services with first use recorded as 1986.
The Domain Name registered in 2022 is confusingly similar to the Complainant’s trade mark including it in its entirety and adding only the generic abbreviation ‘co’ meaning company and the gTLD ‘.com’ which does not prevent said confusing similarity.
The Respondent does not have rights or a legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The Domain Name points to a Chinese Language gambling site. This is not a bona fide offering of goods or services or legitimate non commercial or fair use. It is bad faith registration and use diverting consumers for commercial gain and disrupting the business of the Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark ECOLAB registered, inter alia in the USA for water treatment related goods or services with first use recorded as 1986.
The Domain Name registered in 2022 has been used for a Chinese language gambling site.
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 Domain Name in this Complaint combines the Complainant’s ECOLAB mark (registered, inter alia, in the USA for water treatment related goods and services and used by the Complainant since 1986), the generic abbreviation ‘co’ and the gTLD ‘.com’.
The addition of the generic abbreviation ‘co’ does not prevent confusing similarity between the Domain Name and the Complainant’s mark. See Abbott Laboratories v. Miles White, FA 1646590 (Forum Dec. 10, 2015) (holding that the addition of a generic term does not adequately distinguish a disputed domain name from complainant’s mark under Policy 4(a)(i).).
The gTLD ‘.com’ does not serve to distinguish the Domain Name from the Complainant’s mark, which is the distinctive component of the Domain Name. 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 finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
The Complainant has not authorized 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, 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).
The Respondent has used the site attached to the Domain Name for a commercial Chinese language gambling site which is not a bona fide offering of goods and services or a legitimate non commercial or fair use. See Summit Group, LLC v. LSO, Ltd., FA 758981 (Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either 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)); see also Spike's Holding, LLC v. Nexperian Holding Limited, FA 1736008 (Forum July 21, 2017) (“Using a confusingly similar domain to display unrelated content can evince a lack of a bona fide offering of goods or services or legitimate noncommercial or fair use… The Panel therefore finds that Respondent’s unrelated use of the <finishnline.com> domain name evinces a lack of rights and legitimate interests under Policy ¶ 4(c)(i) & (iii).”).
The Respondent has not responded to the Complaint or offered any explanation.
As such the Panelist finds that the Respondent does not have rights or legitimate interests 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 has been used for a commercial Chinese gambling site. This seems to be diversion of customers for commercial gain disrupting the business of the Complainant. See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Qwest Comm’ns Int’l Inc. v. Ling Shun Shing, FA 187431 (Forum Oct. 6, 2003) (“Respondent has attempted to commercially benefit from the misleading <qwestwirless.com> domain name by linking the domain name to adult oriented websites, gambling websites, and websites in competition with Complainant. Respondent’s attempt to commercially benefit from the misleading domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv).”).
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 para 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ecolabco.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: August 19, 2022
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