The Complainant is Orkin Expansion, Inc., United States of America (“United States”), represented by Arnall Golden Gregory LLP, United States.
The Respondent is Super Privacy Service LTD c/o Dynadot, United States / Rivigo Sollution Pvt LMt, India. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 23, 2020. On April 24, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 26, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on May 4, 2020, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on May 5, 2020. The Center verified that the Complaint together with 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 5, 2020. In accordance with the Rules, paragraph 5, the due date for Response was May 25, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 26, 2020. The Center appointed Clive Duncan Thorne as the sole panelist in this matter on June 8, 2020. 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, Orkin Expansion Inc. of Wilmington, Delaware, United States has traded for more than 90 years in the provision of pest control services. The Complainant is the owner of the trade mark ORKIN which it has used in connection with the provision of pest control services for more than 90 years. It first obtained a trade mark registration for ORKIN in 1952 and now owns numerous United States registrations incorporating ORKIN. Copies of a sample of registration certificates are exhibited at Annex 4 to the Complaint, including United States Registration No. 568406 registered on December 23, 1952 for ORKIN plus device in respect of pest control services. The device is a horizontal diamond shape on which ORKIN is printed in bold white letters. The Complainant has also registered the trade mark ORKIN in numerous countries in the world including in India which is where the Respondent is located. A copy of Indian trade mark registration No. 2656561 dated January 8, 2014 for the mark ORKIN in respect of pest control services is exhibited at Annex 5 to the Complaint. The Respondent registered the disputed domain name Evidence is given by the Complainant that the Respondent has been using both the mark ORKIN and ORKIN plus the horizontal diamond shaped device. This is shown at Annex 6 to the Complaint, which is a print-out of a screenshot of a page from the Respondent’s website accessed at “www.orkinn.com”. The Respondent prominently displays a red horizontal diamond shaped device with ORKIN prominently in white capitals across the device. The content on the site displays numerous other ORKIN marks and promotes pest control services identical to those offered by the Complainant. In the absence of a Response the Panel finds the above evidence adduced by the Complainant to be true and proceeds to determine the Complaint accordingly. 5. Parties’ Contentions A. Complainant The Complainant contends: i. the disputed domain name is identical or confusingly similar to the Complainant’s ORKIN mark in which it has registered rights; ii. on the evidence, the Respondent has no rights or legitimate interests in respect of the disputed domain name; and, iii. on the evidence, the disputed domain name was both registered and is being used by the Respondent in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar On the basis of the above evidence of registered trade marks for ORKIN and ORKIN plus device in the Unites States, India, and elsewhere in the world, the Panel finds that the Complainant has registered rights in those marks. The second-level domain part of the disputed domain name is “orkinn”. The disputed domain name incorporates the entirety of the ORKIN trade mark with the addition of a letter “n”. The addition of a second “n” constitutes a common, obvious, or intentional misspelling of the ORKIN trade mark and does not prevent a finding of confusing similarity. See sections 1.7 and 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). Furthermore, it is well established that in considering similarity that the Panel is entitled to disregard the generic Top-Level Domain (“gTLD”) element, in this case “.com”. Accordingly, the Panel finds that the disputed domain name is confusingly similar to the trade mark ORKIN in which the Complainant has rights. B. Rights or Legitimate Interests The Complainant argues that there is no evidence of the Respondent providing any services or business under the marks ORKIN or ORKINN prior to the registration of the disputed domain name. The Respondent is not related in any way to the Complainant or its business and is not one of its agents. No license or other authorization has been granted to the Respondent to register the disputed domain name or make any use of it. To the contrary, the disputed domain name resolves to a website which reproduces the mark ORKIN plus device and makes a false representation that it is one of the Complainant’s official and authorized websites. Taking into account these submissions and the evidence of the Respondent’s using its website, together with the absence of any contrary evidence or submissions from the Respondent, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith The Complainant submits that, on the evidence, by registering and using the disputed domain name, as it does, the Respondent has intentionally attempted to attract for commercial gain, Internet users to the Respondent’s website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on the Respondent’s website or location within paragraph 4(b)(iv) of the Policy. The Complainant relies upon the fact that the disputed domain name incorporates the trade mark ORKIN and that it is also using a red horizontal diamond device with the mark ORKIN on its website, which is the same as the way in which the Complainant uses its logo and the same as the Complainant’s United States Registration No. 568406, referred to above and which the Complainant regards as a famous mark. The Panel, particularly, takes into account that the Respondent must have been aware of the Complainant’s trade mark registrations and its use of them in the course of offering pest control services. This is because the Respondent chose to use on its website the Complainant’s trade marks, including the red horizontal diamond device together with ORKIN. There can be no doubt that the Respondent chose to register the disputed domain name deceptively and for the purposes of confusing customers and diverting trade from the Complainant. In the circumstances of this case, the use of the disputed domain name to resolve to a website impersonating the Complainant is clearly in bad faith. Furthermore, the nature of the disputed domain name, containing a typo of the Complainant’s widely-known trade mark, supports a finding of bad faith. See section 3.2.1 of the WIPO Overview 3.0. In the absence of a Response, the Panel finds for the Complainant in respect of this element of the Policy. 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 Clive Duncan Thorne
Sole Panelist
Date: June 17, 2020
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