Republic Services, Inc. v. Cashpaid Timothy
Claim Number: FA2103001936619
Complainant is Republic Services, Inc. (“Complainant”), represented by Mario C. Vasta of Fennemore Craig, P.C., Arizona, USA. Respondent is Cashpaid Timothy (“Respondent”), Maryland, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <reapublicservices.com>, registered with Hosting Concepts B.V. d/b/a Registrar.eu.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 15, 2021; the Forum received payment on March 15, 2021.
On March 16, 2021, Hosting Concepts B.V. d/b/a Registrar.eu confirmed by e-mail to the Forum that the <reapublicservices.com> domain name is registered with Hosting Concepts B.V. d/b/a Registrar.eu and that Respondent is the current registrant of the names. Hosting Concepts B.V. d/b/a Registrar.eu has verified that Respondent is bound by the Hosting Concepts B.V. d/b/a Registrar.eu 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 March 17, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 6, 2021 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@reapublicservices.com. Also on March 17, 2021, the 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 April 11, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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.
A. Complainant
Complainant states that it has rights in the REPUBLIC SERVICES mark through its registration of the mark in the United States in 2012. It uses its mark to identify its waste management, waste disposal, garbage collection, and other related waste services.
Complainant alleges that the disputed domain name is confusingly similar to its REPUBLIC SERVICES mark as it merely adds the letter ‘a’ in the word “republic” and the top-level domain “.com.”
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not authorized by Complainant to use the REPUBLIC SERVICES mark. Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services as Respondent uses it to send fraudulent emails mimicking Complainant’s employees in furtherance of a financial scam. The fraudulent emails contain fraudulent invoices that display Complainant’s mark, logo, and one of Complainant’s actual mailing addresses.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent uses the disputed domain name to send fraudulent emails mimicking Complainant’s employees in furtherance of a financial scam.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark REPUBLIC SERVICES and uses to market waste disposal services.
Complainant’s registration of its mark dates back to 2012.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain name to send fraudulent emails impersonating Complainant’s employees. The fraudulent emails contain fraudulent invoices that display Complainant’s mark, logo, and one of Complainant’s actual mailing addresses.
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 disputed domain name merely adds the letter ‘a’ in the word “republic” of Complainant’s REPUBLIC SERVICES mark, while adding the top-level domain “.com.” The intentional misspelling of a mark and the addition of a gTLD fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Bank of America Corporation v. Above.com Domain Privacy, FA 1629452 (Forum Aug. 18, 2015) (finding that the <blankofamerica.com> domain name contains the entire BANK OF AMERICA mark and merely adds the gTLD ‘.com’ and the letter ‘l’ to create a common misspelling of the word ‘bank.’). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its REPUBLIC SERVICES mark. Respondent is not commonly known by the disputed domain name: when a response is lacking, relevant WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS information for the disputed domain name lists the registrant as “Cashpaid Timothy”. Thus the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name to send fraudulent emails mimicking Complainant’s employees in furtherance of a financial scam. The fraudulent emails contain fraudulent invoices that display Complainant’s mark, logo, and one of Complainant’s actual mailing addresses. Using a confusingly similar domain name to pass off as a complainant in furtherance of a financial scam may not be a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (Forum July 11, 2017) (finding that respondent’s attempt to pass off as complainant through emails does not constitute a bona fide offering of goods or services and, as such, respondent lacked rights or legitimate interests in the disputed domain name); see also Goodwin Procter LLP v. GAYLE FANDETTI, FA 1738231 (Forum Aug. 8, 2017) (“[T]he Domain Name has been used in an attempted fraud. As such it cannot have been registered for a legitimate purpose.”). Therefore, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply) has not presented any plausible explanation for its use of Complainant’s marks. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name to send fraudulent emails mimicking Complainant’s employees in furtherance of a financial scam. Using a confusingly similar domain to pass off as an employee of a complainant can demonstrate bad faith per Policy ¶¶ 4(b)(iii) and (iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”); see also National Oilwell Varco, L.P. v. Craig Wood/NOV, FA 1575951 (Forum Sept. 22, 2014) (finding bad faith where respondent fraudulently attempted to induce wire transfers by sending e-mails purporting to be from complainant’s President and CEO). Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the fraudulent invoices attached to the fraudulent emails display Complainant’s mark, logo, and one of its actual business addresses. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Finally, by merely adding an “a” to Complainant’s mark, Respondent engages in typosquatting. A finding of typosquatting can evince bad faith under Policy ¶ 4(a)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii).”). As such, the Panel finds bad faith typosquatting under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <reapublicservices.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: April 12, 2021
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page