The Complainant is Valet Waste, LLC of Tampa, Florida, United States of America, represented by Trenam Kemker, United States of America.
The Respondent is Reaction Associates Waste Watchers of Marietta, Georgia, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 21, 2010. On August 23, 2010, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the disputed domain name. On August 23, 2010, GoD, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 27, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was September 16, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 17, 2010.
The Center appointed Jordan S. Weinstein as the sole panelist in this matter on September 22, 2010. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
Complainant, Valet Waste LLC, owns United States Registration No. 3,507,900, for the trademark VALET WASTE issued on September 30, 2008 in connection with “trash and recycling collection at multi-family living facilities”; and United States Registration No. 2,402,809 for the trademark VALET WASTE, INC, issued on November 7, 2000 in connection with “trash and recycling collection at multi-family living facilities.” Complainant also owns the domain names , registered in January of 1999, , registered in July of 2002 and , transferred to Complainant in November of 2009 by a court order. 5. Parties’ Contentions A. Complainant
Complainant asserts that it was founded in 1995 and has since grown to be the leading national provider of five-night-a-week doorstep trash and recycling pick up in the multi-family housing industry. The company provides door to door trash services in over 200,000 multi-family housing units in 16 states of the United States and the District of Columbia. Complainant provided evidence of various advertisements, flyers and mailings to corroborate its assertion that it spends considerable resources in promoting its services under its registered trademarks, in Internet, e-mail marketing, print advertising and attendance at events and trade shows. Complainant also asserts that it belongs to numerous multi-family organizations and associations, where presumably it promotes its services under the VALET WASTE trademark. Complainant asserts it also promotes its services under the VALET WASTE trademarks at numerous trade shows for various regional apartment associations. Complainant asserts that its CEO was nominated for Ernst & Young’s Entrepreneur of the Year award.
Complainant asserts that the disputed domain name is virtually identical to its registered trademarks because the disputed domain name incorporates the trademark VALET WASTE in its entirety. Complainant asserts that Respondent must have been aware of Complainant’s website when it sought to register the subject domain name, and infers that Respondent employed a misspelled but similar version of Complainant’s trademarks to take advantage of their good will. Complainant asserts that adding the “ww” prefix does not differentiate the subject domain name from Complainant’s trademarks as these letters have no distinguishing capacity in the context of domain names, but rather have the effect of focusing attention on the succeeding word.
Complainant asserts that Respondent has no rights or legitimate interests in respect of the disputed domain name because Respondent is not associated or affiliated with Complainant in any way, Complainant has not licensed Respondent to use its marks nor indicated that Respondent is allowed to use them. Complainant asserts that Respondent has no trademarks incorporating the phrase “valet waste”, is not recognizable by that name nor is it commonly known by the name “wwvaletwaste”. Rather, Complainant asserts that Respondent is a direct competitor offering its services under the name WASTE WATCHERS. Complainant asserts that the disputed domain name resolves to a website promoting Respondent’s WASTE WATCHERS doorstep trash removal services. Complainant asserts that neither the WASTE WATCHERS website nor Respondent’s WASTE WATCHERS services are connected with Complainant or Complainant’s trademarks.
Complainant asserts that Respondent has registered and is using the disputed domain name in bad faith because Respondent registered the disputed domain name primarily for the purpose of disrupting Complainant’s business and intentionally to attract, for financial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s trademarks. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Applicable Policy Provisions
Paragraph 4(a) of the Policy requires Complainant to prove each of the following three elements in order to prevail in this proceeding:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
In order to prevail in a proceeding under the Policy, a Complainant must typically prove both registration and use in bad faith. See World Wrestling Federation Entertainment, Inc. v. Michael Bosman,WIPO Case No. D1999-0001; Robert Ellenbogen v. Mike Pearson,WIPO Case No. D2000-0001.
However, the Policy states that the following circumstances shall be evidence of the registration and use of a domain name in bad faith:
(i) Circumstances indicating that [the Respondent has] registered or acquired the domain name 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 documented out-of-pocket costs directly related to the domain name; or
(ii) [the Respondent has] registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [the Respondent has] engaged in a pattern of such conduct; or
(iii) [the Respondent has] registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, [the Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [its] website 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 [its] website or location or of a product or service on [its] website or location.
Policy, paragraph 4(b). These circumstances are non-exclusive, and a panel may consider other circumstances as constituting registration and use of a domain name in bad faith.
Where, as here, a Respondent is in default, the Panel may draw such inferences as it considers appropriate. Policy, paragraph 14(b). B. Identical or Confusingly Similar
The Panel agrees that the disputed domain name is confusingly similar to Complainant’s registered trademark VALET WASTE, as it contains Complainant’s registered mark in its entirety, and is confusingly similar to Complainant’s registered trademark VALET WASTE, INC, because the designation “INC.” adds no distinctiveness to Complainant’s trademark and therefore the disputed domain name incorporates the distinctive portion of this mark in its entirety. Adding the letters “ww” before “valetwaste” fails to distinguish the disputed domain name from Complainant’s trademark for purposes of determining whether they are identical or confusingly similar. E Inc. v. Wan-Fu China, Ltd.,WIPO Case No. D2007-0339 (finding the domain name confusingly similar to EDMUND’S), Sanofi-Aventis v. Domain Specialists,WIPO Case No. D2007-1005 (finding the domain name confusingly similar to AMBIEN). The Panel finds that Complainant has provided sufficient evidence to establish element 4(a)(i) of the Policy. C. Rights or Legitimate Interests
Complainant asserts, and Respondent has failed to rebut, that Complainant has not authorized, licensed or consented to Respondent’s registration and use of the disputed domain name, and that Respondent is not commonly known by the name “wwvaletwaste”. Combined with the inferences this Panel may make as a result of Respondent’s default herein, this Panel finds that Complainant has made a prima facie showing that Respondent lacks rights or legitimate interests in respect of the disputed domain name, which showing Respondent has failed to rebut. See Overview of WIPO Panel Views on Selected UDRP Questions, paragraph 2.1 and cases cited therein. As a result, Complainant has established element 4(a)(ii) of the Policy. D. Registered and Used in Bad Faith
The Panel finds that Complainant has provided sufficient evidence to satisfy paragraph 4(b)(iv) of the Policy, namely that by using the disputed domain name, Respondent intentionally intended to attract for commercial gain Internet users to its website by creating a likelihood of confusion with Complainant’s trademarks as to the source, sponsorship, affiliation or endorsement of Respondent’s website.
In addition to the inferences to be drawn from Respondent’s default in this proceeding, the Panel draws an inference that Respondent was aware of Complainant’s trademarks at the time it registered the disputed domain name from the fact that Respondent is a competitor of Complainant, that its website promotes services competitive to Complainant’s and that the letters preceding Complainant’s registered trademark in the domain name are “ww”, often the hallmark of a “typo squatter” seeking to take advantage of Internet users who are careless in attempting to enter a period in between the letters “www” (for “worldwide web”) and the address they are attempting to reach. See TRS Quality, Inc. v. Privacy Protect,WIPO Case No. D2010-0400; L’Oréal, Helena Rubenstein, Lancôme Parfums et Beauté & Cie. v. Spiral Matrix,WIPO Case No. D2006-0869. 7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Jordan S. Weinstein
Sole Panelist
Dated: October 6, 2010
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