WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Valet Waste, LLC v. Ellipse Communications
Case No. D2010-1415
1. The Parties
The Complainant is Valet Waste, LLC of Tampa, Florida, United States of America, represented by Trenam Kemker, United States of America.
The Respondent is Ellipse Communications of Dallas, Texas, United States of America.
2. The Domain Name and Registrar
The disputed domain name <valetwasteserviceforapartments.com> is registered with GoDaddy.com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 21, 2010. On August 23, 2010, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On the same date, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the 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 2, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was September 22, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 23, 2010.
The Center appointed William F. Hamilton as the sole panelist in this matter on October 1, 2010. 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 provides doorstep trash and recycling pickup for the multi-family housing complexes in the United States. The Complainant began business in 1995 and has received numerous awards and accolades for innovative service. The Complainant registered the mark VALET WASTE, INC. in 2000 with the United States Patent and Trademark Office. In September 2008 the Complainant registered the mark VALET WASTE. The two marks collectively will be referred to in this Decision as the Complainant's Marks. The Complainant obtained the domain name <valetwaste.com> in January 1999, the domain name <valetwaste.net> in July 2002 , and the domain name <myvaletwasteservices.com> in November 2008 in a voluntary transfer subsequent to initiating a legal proceeding in the United States. The Respondent registered the disputed domain name on March 7, 2008. The disputed domain name originally resolved to a website offering competitive services provided by a company known as Waste Away, LLC. The disputed domain name resolved to the same pages as the competitive “www.wasteaway.us” website. The Complainant's principal place of business is Tampa, Florida. The Waste Away, LLC website shows its principal offices also to be located in Tampa, Florida. The Respondent provided website design and marketing services to Waste Away, Inc. The disputed domain name now resolves to a landing page featuring the services of the Respondent and recites the website is "currently under development."
5. Parties’ Contentions
The Complainant contends the disputed domain name is confusingly similar to the Complainant’s Marks because the disputed domain name incorporates the Complainant’s Marks into the disputed domain name except for the abbreviation 'Inc." The Complainant further contends that the Respondent has no rights or legitimate interests in the disputed domain name as the Respondent does not do business under the disputed domain name and the Complainant has never authorized the Respondent to use the disputed domain name or the Complainant’s Marks The Complainant further contends that the disputed domain name was registered and is being used in bad faith to attract unsuspecting Internet consumers looking for the Complainant’s services to the Respondent’s website.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy articulates three elements that must be established by a complainant to merit a finding that a respondent has engaged in abusive domain name registration, and to obtain relief. These elements are that:
(i) The respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights: and
(ii) The respondent has no rights or legitimate interests in respect of the domain name; and
(iii) The respondent’s domain name has been registered and is being used in bad faith.
Each of these elements must be proved by a complainant to warrant relief.
A. Identical or Confusingly Similar
The disputed domain name is confusingly similar to the Complainant's Marks. The disputed domain name incorporates the Complainant’s Marks entirely excluding the immaterial abbreviation "Inc." Adding the generic expression "service for apartments" as a suffix to form the disputed domain name compounds the likelihood of confusion in that the added generic expression describes the exact services offered by the Complainant. Dr. Ing. h.c. F. Porsche AG v. Rojeen Rayaneh, WIPO Case No. D2004-0488; AmerCable Incorporated v. Edward Van Rossum, WIPO Case No. D2009-1292. The Panel holds that the Complainant has established the first element under paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
The Panel finds that the Respondent does not appear to have any rights or legitimate interests in the disputed domain name. The Respondent is a competitor of the Complainant and offers its services under the trade name "WASTE AWAY, LLC." Moreover, the Complainant has affirmatively averred that the Respondent has never been authorized by the Complainant to use the disputed domain name or the Complainant's Marks. The Respondent has not answered this Complaint nor has the Respondent offered any foundation for any claim of rights or legitimate interests in the disputed domain name. The Panel holds that in the present circumstances, the Complainant has established the second element under paragraph 4(a) of the Policy. LEGO Juris A/S v. PrivacyProtect.org/ThaiSerVerOnLinE, Mr. Sagsan Phurahong, WIPO Case No. D2010-0711; Audi AG v. Dr. Alireza Fahimipour, WIPO Case No. DIR2006-0003; Tractor Supply Co. of Texas LP, Tractor Supply Company v. Fractional Investors, WIPO Case No. D2010-1142.
C. Registered and Used in Bad Faith
The evidence presented demonstrates that the disputed domain name was registered and is being used in bad faith. It is inconceivable that the Respondent who represented a direct competitor of the Complainant was not aware of the Complainant or the Complainant's Marks and websites. The Respondent has made no effort to justify its behavior. The disputed domain name originally resolved to Respondent's client's website at “www.wasteaway.us”. Tellingly, Waste Away, LLC and the Complainant are both located in Tampa, Florida. Even without actual foreknowledge, a simple Google search would have located the Complainant's business. It is hard to imagine a professional web developer and marketing company such as the Respondent not undertaking such an elementary search. The fact that the disputed domain name temporarily no longer resolves to the Complainant's competitor's website is of no moment. The Panel finds that the Complainant has established the third element under paragraph 4(a) of the Policy. Youbet.com Inc. v. Grand Slam Company, WIPO Case No. D2002-0711; Freedom Flag, Inc. d/b/a Falls Flag & Banner Co. v. Flags Unlimited, WIPO Case No. D2002-0478; Ansell Healthcare Products Inc. v. Australian Therapeutics Supplies Pty, Ltd., WIPO Case No. D2001-0110.
For all 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 <valetwasteserviceforapartments.com> be transferred to the Complainant.
William F. Hamilton
Dated: October 15, 2010