Waste Connections US, Inc. v. morgan rose
Claim Number: FA2202001984652
Complainant is Waste Connections US, Inc. (“Complainant”), represented by Scott Hervey of Weintraub Tobin Chediak Coleman Grodin, California, USA. Respondent is morgan rose (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wasteconnections.cc>, registered with NameCheap, Inc..
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 February 16, 2022; the Forum received payment on February 16, 2022.
On February 17, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <wasteconnections.cc> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 February 17, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 9, 2022 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@wasteconnections.cc. Also on February 17, 2022, 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 March 14, 2022, 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 is a solid waste services company that provides non-hazardous waste collection, transfer and disposal services, and resource recovery through recycling and renewable fuels. Complainant, together with its subsidiaries and affiliates, serves more than eight million residential, commercial and industrial customers across 43 states in the United States and six provinces in Canada. Complainant asserts rights in the WASTE CONNECTIONS mark through its registration of the mark in the United States in 2017.
Complainant alleges that the disputed domain name is identical or confusingly similar to its WASTE CONNECTIONS mark, as it incorporates the mark in its entirety, only removing the spaces between words and adding the “.cc” country-code top-level domain name (“ccTLD”).
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Complainant has not authorized or licensed Respondent to use its WASTE CONNECTIONS mark, nor is Respondent commonly known by the disputed domain name. Further, Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services or legitimate noncommercial or fair use as the disputed domain name redirects users to a website that hosts third-party competing advertising hyperlinks. Additionally, Respondent attempted to pass off as Complainant in furtherance of a phishing scheme.
Further, says Complaint, Respondent registered and uses the disputed domain name in bad faith. The resolving website hosts third-party competing hyperlinks. Respondent used the disputed domain name to engage in a fraudulent phishing scheme.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark WASTE CONNECTIONS dating back to 2017 and uses it to provide waste disposal services.
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 resolve to a web site that contains advertising to services that compete with those of Complainant. Respondent also used the disputed domain name in an email in furtherance of a phishing scheme.
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 incorporates Complainant’s WASTE CONNECTIONS mark in its entirety, merely removing the spaces between words and adding the “.cc” country-code top-level domain name (“ccTLD”). Merely deleting the spacing between words and appending a top-level domain is not sufficient to differentiate a disputed domain name from a mark. See KW KONA INVESTORS, LLC v. Privacy.co.com / Privacy.co.com, Inc Privacy ID# 923815, FA 1784456 (Forum June 11, 2018) (“[T]he omission of spacing and addition of a gTLD are irrelevant in determining whether the disputed domain name is confusingly similar.”); see also Rockwell Automation v. Zhao Ke, FA 1760051 (Forum Jan. 2, 2018) (“The disputed domain name <rockwellautomation.co> corresponds to Complainant's registered ROCKWELL AUTOMATION mark, with the space omitted and the ".co" top-level domain appended thereto. These alterations do not distinguish the domain name from Complainant's mark for purposes of the Policy.”). The Panel therefore finds that the <wasteconnections.cc> domain name is identical to Complainant’s WASTE CONNECTIONS mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its WASTE CONNECTIONS mark. Respondent is not commonly known by the disputed domain name: past panels have looked at the available WHOIS information to determine whether a Respondent is commonly known by the disputed domain name. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Here, the WHOIS information shows the registrant as “morgan rose”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The disputed domain name resolves to a parked website that displays pay-per-click advertising hyperlinks for services that compete with those of Complainant. A panel may find using a disputed domain name to host a parked website that presents users with competing third-party links is not a bona fide offering of goods and services or legitimate noncommercial or fair use. See Walgreen Co. v. Privacy protection service - whoisproxy.ru, FA 1785188 (Forum June 10, 2018) (“Respondent uses the <walgreensviagra.net> domain name to pass itself off as Complainant and display links to a website offering products similar to those offered by Complainant. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use under Policy ¶ 4(c)(iii).”); see also The Toronto-Dominion Bank v. GEORGE WASHERE, FA 1785311 (Forum June 7, 2018) (“Respondent’s confusingly similar <esecuretdbank.com> domain name references a website displaying links to competing third parties as well as links to Complainant and various unrelated third parties. Using the domain name in this manner shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Therefore the Panel finds that Respondent is not using the disputed domain name to make a bona fide offering of goods and services or a legitimate noncommercial or fair use per Policy ¶ 4(c)(i) and (iii).
Further, Complainant presents evidence showing that Respondent used the disputed domain name in an email in an attempt to pass off as Complainant in furtherance of a phishing scheme. Using a disputed domain name to pass off via email as complainant to obtain personal or financial information is not a bona fide offering of goods and services or legitimate noncommercial or fair use. See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”); see also 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). Thus the Panel finds, on this ground also, that Respondent fails to use the disputed domain name to make a bona fide offering of goods and services or a legitimate noncommercial or fair use per Policy ¶ 4(c)(i) and (iii).
For all the above reasons, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. 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 disrupt Complainant’s business and attract users for commercial gain through the use of third-party links. Panels have found such a use of a domain name to constitute bad faith under Policy ¶ 4(b)(iv). See Capital One Financial Corp. v. Above.com Domain Privacy / Above.com Domain Privacy, FA1501001598657 (Forum Feb. 20, 2015) (“This Panel agrees that Respondent’s use as shown in Exhibits C-D illustrates that Respondent here seeks commercial gain through a likelihood of confusion, as competing hyperlinks have been found to establish evidence of intent to seek commercial gain through referral fees, and thus demonstrates bad faith registration under Policy ¶ 4(b)(iv).”). Thus, the Panel finds bad faith registration and use under Policy ¶ 4(b)(iv).
Furthermore, also as already noted, Respondent used the disputed domain name to engage in a phishing scheme. Past panels have agreed that using a disputed domain name to pass off as a complainant’s employee to obtain personal or financial information is indication of bad faith. See CoorsTek, Inc. v. Gwendolyn K Bohn / CoorsTek Inc, FA 1764186 (Forum Feb. 2, 2018) (“Respondent sent email to users seeking employment at Complainant’s business and asked for personal information such as a photo ID. Therefore, the Panel finds Respondent’s emails constitute a phishing scheme and this indicates bad faith registration and use per Policy ¶ 4(a)(iii).”); see also Airbnb, Inc. v. JAMES GRANT, FA1760182 (Forum Dec. 28, 2017) (“Using a misleading email address to defraud unwary customers certainly constitutes bad faith.”). Therefore, the Panel also finds bad faith registration and use per 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 <wasteconnections.cc> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: March 15, 2022
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