Complainant is Brink's Network, Inc. of Wilmington, Delaware, United States of America, represented by Thompson Coburn LLP, United States.
Respondent is Peter Nuts of Tampa, Florida, United States. 2. The Domain Name and Registrar
The disputed domain name is registered with PDR Ltd. (doing business as PublicDomainR) ("Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center ("Center") on July 13, 2016. On July 14, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 15, 2016, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing contact information and other details of the registration.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy ("Policy" or "UDRP"), the Rules for Uniform Domain Name Dispute Resolution Policy ("Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy ("Supplemental Rules").
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on July 20, 2016. In accordance with the Rules, paragraph 5, the due date for Response was August 9, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on August 10, 2016.
The Center appointed Debra J. Stanek as the sole panelist in this matter on August 26, 2016. 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 owns the rights to the marks BRINK'S and BRINKS, as a word mark and in stylized form, for safes, security systems, armored transportation, and other related goods and services. The earliest of its United States federal registrations – BRINK's for security transportation, Registration No. 1309375 – was issued on December 11, 1984 and claims a date of first use of 1912. Since 2000, it also uses "Brinks Global" in connection with the name of an affiliated company and a website that uses the domain name .
The disputed domain name was registered on June 1, 2016. At that time, it was used with a website that offered services similar to those offered by Complainant, including armored vehicle transportation. The web page contained the stylized BRINKS mark along with a number of graphic elements and overall layout that appear to be identical to those used on the "www." website. 5. Parties' Contentions A. Complainant 1. Identical or Confusingly Similar
Complainant has used its BRINKS mark since 1859 and has become famous worldwide for its armored car and related services. It owns a number of United States federal trademark registrations for its BRINKS marks.
Complainant also claims rights in the mark BRINKS GLOBAL, which is not registered. Complainant registered the domain name in September 2000. It uses the BRINKS GLOBAL mark on the "www." website; an Internet search for "Brink's global" at Google provides results only for Complainant's business.
The disputed domain name is confusingly similar to the BRINKS GLOBAL mark. Respondent has misspelled "brinks", by adding an additional "i". This is typo squatting, because it takes advantage of errors in typing a domain name. Moreover, the disputed domain name is phonetically identical. The disputed domain name is also confusingly similar to the BRINKS mark. It includes the entire mark and the addition of the term "global" does not distinguish it from the mark because the term is descriptive and further, identifies Complainant's affiliated company.
Respondent's copying of Complainant's website increases the likelihood of confusion. 2. Rights or Legitimate Interests
Respondent has no rights or legitimate interests in the disputed domain name. The disputed domain name was not registered until more than 150 years after Complainant first used its BRINKS mark, more than 20 years after Complainant registered its domain name, and more than 15 years after Complainant registered its domain name.
Respondent is not a licensee of Complainant and has never been affiliated with, connected to, or sponsored by Complainant.
Complainant's evidence is sufficient to show that Respondent is not "commonly known" by the disputed domain name:
- A search of the current United States Patent and Trademark Office records reveals no applications or registrations for marks incorporating the term "briinks" in the name of Respondent.
- It appears that Respondent's contact information in the WhoIs record for the disputed domain name is false.
- A Google search discloses that the address does not exist.
- The telephone area code does not correspond to the city in the registration.
- A Google search for the phrase "Briinks global" does not direct the Internet user to Respondent, but instead directs the user to Complainant's "www." website, suggesting that Respondent is not and has never been commonly known by the disputed domain name.
Respondent is not making a "fair use" of "brink's global." The phrase is not being used for a descriptive purpose, but is instead diverting actual and potential customers of Complainant to Respondent's website. 3. Registered and Used in Bad Faith
Respondent has registered and used the disputed domain name in bad faith.
Under Paragraph 2 of the Policy Respondent had the responsibility and burden to "determine whether [the] domain name registration infringes or violates someone else's rights" before registering the disputed domain name. Given the fame of the BRINKS marks, it is inconceivable that Respondent's registration was in good faith and without knowledge of Complainant's rights.
Respondent's copying of content from Complainant's "www." website, including a copyright notice that identifies "Brinks, Incorporated" and pages that detail over one hundred years of history of Complainant, make it clear that he knew of Complainant's rights.
Finally, Respondent appears to be using the disputed domain name to defraud people. In June and July 2016, email messages were sent from an address using the disputed domain name. The messages purported to be from "Brink's Global Services" in Germany and requested payment related to a shipment of diamonds. While the messages contain syntactical, grammatical, and lexical errors that suggest a lack of legitimacy, in each, the sender requesting payment is misrepresented as an officer of "Brink's." B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
Complainant must prove, as to the disputed domain name, that:
(i) It is identical or confusingly similar to a mark in which the Complainant has rights.
(ii) The Respondent has no rights or legitimate interests in respect to it.
(iii) It has been registered and is being used in bad faith.
Policy, paragraph 4(a). Complainant bears the burden of establishing the required elements even where, as here, Respondent has not answered the Complaint. A. Identical or Confusingly Similar
Complainant does not claim any registration for the mark BRINKS GLOBAL and must therefore establish common rights in the unregistered mark. Complainant's evidence of common law rights consists of its registration of the domain name, its use of BRINKS GLOBAL "in connection with Complainant's business and throughout the website", and the fact that "a Google search for the phrase 'Brink's global' provides results only for Complainant's business." In the Panel's view, this is not the type of evidence that establishes rights in a mark that has not been registered1. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 1.7 (complainant asserting rights in a mark that is not registered must show mark has become a distinctive identifier for it or its goods and services, such as by evidence of length of use, sales, nature and extent of advertising, consumer surveys, and media recognition of mark). However, the Panel need not determine whether this showing is adequate because Complainant has established its rights in the mark BRINKS by virtue of its United States federal trademark registration.
The question then becomes whether the disputed domain name (disregarding the Top-Level Domain ".com") is identical or confusingly similar to Complainant's BRINKS mark. They are not identical, therefore Complainant must establish that the confusing similarity, determined with reference to the degree of resemblance as to appearance, sound, and meaning. See, e.g., WIPO Overview 2.0, paragraph 1.2 (test for confusing similarity typically involves straightforward comparison of mark and alphanumeric string in the domain name).
Here, the disputed domain name differs only as to the addition of an additional "i" and the descriptive term "global." The Panel agrees that the double "i" reflects a typographical error likely to be made by Internet users and that the descriptive term "global" does little to nothing to differentiate the disputed domain name from Complainant's mark.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights. B. Rights or Legitimate Interests
The Panel, consistent with the consensus view, finds that a complainant may establish that a respondent has no rights or legitimate interests in respect of a domain name by making a prima facie showing that a respondent lacks rights or legitimate interests. See WIPO Overview 2.0, paragraph 2.1 (after complainant makes a prima facie case, the burden of showing rights or legitimate interests shifts to respondent).
The Panel finds that Complainant has made a prima facie showing under paragraph 4(c) of the Policy. There is no reason to believe, from the WhoIs record or otherwise, that Respondent is or could be known by the disputed domain name. There is no evidence that Respondent is making a fair or noncommercial use of the disputed domain name or using it in connection with a bona fide offering of products or services. To the contrary, the evidence suggests that Respondent is using the disputed domain name to deceive others into believing that Respondent's communications are from Complainant. C. Registered and Used in Bad Faith
Complainant must establish that the disputed domain name was registered and is being used in bad faith. The Panel finds that Complainant has established bad faith under paragraph 4(b)(i)-(iv) of the Policy.
The Panel finds that Complainant's mark is widely known and predates registration of the disputed domain name. Given the identity of the content used on the website used with the disputed domain name and Complainant's "www." website, Respondent must have known of Complainant and its marks and therefore registered the disputed domain name with the mark in mind. Further, it appears that the disputed domain name is being used to attract visitors for commercial gain by confusing them into believing that they are accessing a site affiliated with Complainant.
In light of these facts and the adverse inferences that arise from Respondent's failure to respond to the Complaint, see Rules, paragraph 14(b), the Panel finds that Complainant has established that Respondent has registered and is using the disputed domain name in bad faith. 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 Complainant.
Debra J. Stanek
Sole Panelist
Date: September 2, 2016
1 The Complaint is signed only by Complainant's counsel; no information is included that suggests that its assertions are based on his personal knowledge.
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