The Complainant is Republic Services, Inc. of Phoenix Arizona, United States of America (“US”), represented by Seyfarth Shaw, US.
The Respondent is Stacy Monday of Sunnyvale, California, US. 2. The Domain Name and Registrar
The disputed domain name is registered with Melbourne IT Ltd (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 21, 2014. On August 22, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 25, 2014, the Registrar transmitted by email to the Center its verification response confirming the Respondent as the registrant and providing contact details.
In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on September 5, 2014.
The Center verified that the amended 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 September 8, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was September 28, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent of its default on September 29, 2014.
The Center appointed Dennis A. Foster as the sole panelist in this matter on October 3, 2014. 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
The Complainant is a U.S. company that markets non-hazardous solid waste handling services in that country. The Complainant has secured multiple registrations with the United States Patent and Trademark Office (“USPTO”) for its REPUBLIC SERVICES service mark (e.g., Registration No. 4,084,686; registered January 10, 2012).
The Respondent owns the disputed domain name and the date of creation is April 10, 2014. The disputed domain name has remained largely unused, except to serve as a contact portal for email addresses. Through one such address, email solicitations purporting to be from an employee of the Complainant have been sent. 5. Parties’ Contentions A. Complainant
The Complainant is a United States of America company that is one of the largest providers of non-hazardous solid waste handling in that country. In 2013, the Complainant’s revenues totaled USD 8.147 billion, and it had over 31,000 employees. Moreover, in that same year, the Complainant spent in excess of USD 20 million on the promotion of services under its mark.
Since 1998, the Complainant has used the REPUBLIC SERVICES service mark in connection with its services. The Complainant has many registrations for that mark with the USPTO. It has also used its mark in connection with services furnished under its domain name .
The disputed domain name is confusingly similar to the REPUBLIC SERVICES service mark. The disputed domain name replicates the entire mark, merely adding a “c” between the two words that make up the mark.
The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has been granted no license or authorization from the Complainant to use its mark. The Respondent uses the disputed domain name to impersonate the Complainant, including to place the name of a former employee of the Complainant in email services connected to the domain name, as well as to present a replica of the Complainant’s signature block. Such activity is designed to defraud potential customers of the Complainant, through the pretense of purchasing computer equipment under its authority, and fails to constitute a bona fide offering of goods and services.
The Respondent has registered and is using the disputed domain name in bad faith. The Respondent has connected the domain name to a parking page and used it to commit fraud, each activity providing ample evidence of such bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Under Policy paragraphs 4(a)(i) – (iii), the Panel may rule in favor of the Complainant and grant a transfer of the disputed domain name provided that the Complainant can prove that:
- The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
- The Respondent has no rights or legitimate interests in respect of the disputed domain name; and
- The disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Complainant’s presentation of evidence (Complaint Exhibit A), showing valid USPTO registrations, demonstrates clearly that the Complainant has sufficient rights in the REPUBLIC SERVICES service mark to satisfy the requirements of Policy paragraph 4(a)(i). See, The Schneider Group, Inc. v. Jack Mann,WIPO Case No. D2010-0448 (“The Panel finds that Complainant has established rights in the PROTEK mark under Policy paragraph 4(a)(i) through its registration with the USPTO.”).
The Panel can see plainly that the only differences between and REPUBLIC SERVICES are the deletion of the space and the insertion of a “c” between the two words that make up the mark. In the Panel’s view, these superficial alterations are immaterial and constitute the typical sort of “typo-squatting” that many prior UDRP panels have found insufficient to avoid findings of confusing similarity between disputed domain names and established marks. Also, the addition of the generic Top- Level Domain (gTLD), “.com”, may be disregarded when assessing confusing similarity between the domain name and the mark, because such a suffix is required of all domain names. Thus, the Panel concludes that the disputed domain name is confusingly similar to the Complainant’s service mark. See, E, Inc. v. Digi Real Estate Foundation,WIPO Case No. D2006-1043, (finding confusingly similar to the EDMUND’S mark); and Humana Inc. v. Cayman Trademark Trust,WIPO Case No. D2006-0073 (holding to be confusingly similar to the HUMANA trademark, while stating: “This conduct is commonly referred to as ‘typosquatting’ and creates a virtually identical and/or confusingly similar mark to the Complainant’s trade-mark.”).
Accordingly, the Panel finds that the Complainant has fulfilled the requirements of Policy paragraph 4(a)(i). B. Rights or Legitimate Interests
The Complainant has proved its rights in the REPUBLIC SERVICES mark and asserts forcefully that it has never authorized or licensed the Respondent to use that mark. A prima facie case having been thus established against her, Respondent is obligated to come forward with a presentation showing that she does possess rights or legitimate interests in the disputed domain name. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 2.1 (“While the overall burden of proof rests with the complainant, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is often primarily within the knowledge of the respondent. Therefore a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name.”).
As the Respondent has failed to file a Response, the Panel will look elsewhere in the record for evidence that might rebut the Complainant’s prima facie case that Respondent has no rights or legitimate interests in the disputed domain name. In doing so, the Panel will consult paragraph 4(c) of the Policy for avenues that could support the Respondent’s position, taking into account that the Panel feels obligated to accept all of the Complainant’s reasonable assertions that are not clearly contradicted by the record. See Time Equipment Corp. v. Stage Presence,WIPO Case No. D2003-0850 (“[...] since Respondent has defaulted, it is appropriate to accept the facts asserted by Complainant and to draw adverse inferences of fact against Respondent.”); and The Vanguard Group, Inc. v. Lorna Kang,WIPO Case No. D2002-1064 (“[...] the Panel’s decision is based upon the Complainant’s assertions and evidence and inferences drawn from the Respondent’s failure to reply.”).
Considering paragraph 4(c)(ii) of the Policy, the Panel must conclude that there is no evidence in the record to sustain a finding that the Respondent, Stacey Monday, has ever been commonly known as . With respect to the other two criteria enumerated in paragraph 4(c), the Complainant’s reasonable contention, supported by plenty of evidence (Complaint Exhibit D), that the Respondent has used the disputed domain name to put forward an email address in order to facilitate bogus solicitations, ostensibly on behalf of the Complainant, leads the Panel to determine that said criteria fail to apply to this case as well. Such apparently fraudulent behavior constitutes neither a bona fide offering of goods or services pursuant to paragraph 4(c)(i) nor legitimate noncommercial or fair use pursuant to paragraph 4(c)(iii). See, Toray Industries, Inc. v. Whois Privacy Protection Service, Inc., ALAN ONEAL, Name Redacted, SALMAN MASUD,WIPO Case No. D2013-1787 (“[...] the Respondents did not demonstrate any use or demonstrable preparation to use the Domain Names in connection with a bona fide offering of goods or services as the Respondents are using the Domain Names to commit fraudulent actions, in that the Respondents impersonated the Complainant or its staff in order to deceive, and extract information/monies via a scam.”).
As a result of the foregoing analysis, the Panel deems the Complainant’s prima facie case to be conclusive in this matter.
Accordingly, the Panel finds that the Complainant has fulfilled the requirements of Policy paragraph 4(a)(ii). C. Registered and Used in Bad Faith
The Complainant has provided the Panel with compelling evidence that the Respondent is using the disputed domain name to solicit the purchase of various items under the pretense that those solicitations are coming from a senior employee of the Complainant. The Panel would reasonably assume that, should the items have been delivered to the Respondent, no payment to the supplying companies would be forthcoming, causing them to pursue action against the Complainant for payment. Such obnoxious use of a disputed domain name is not listed explicitly in paragraph 4(b) of the Policy as a circumstance calling for a finding of bad faith, but certainly that use smacks utterly of bad faith registration and use of the disputed domain name. Since the circumstances listed in paragraph 4(b) are not intended to be exhaustive of all reasons that might support a finding of bad faith, the Panel concludes that indeed the disputed domain name has been registered and is being used in bad faith for the reason explained above. See, Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624 (“...the examples [of bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive.”).
Accordingly, the Panel finds that the Complainant has fulfilled the requirements of Policy paragraph 4(a)(iii). 7. Decision
For 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.
Dennis A. Foster
Sole Panelist
Date: October 17, 2014
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