Waste Connections US, Inc. and Waste Connections of Nebraska, Inc. v. Sam Swartz
Claim Number: FA2006001900100
Complainant is Waste Connections US, Inc. and Waste Connections of Nebraska, Inc. (“Complainant”), represented by Scott M. Hervey of Weintraub Tobin Chediak Coleman Grodin, United States. Respondent is Sam Swartz (“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wasteconnectionsofnebraska.com>, registered with Godaddy.Com, LLC.
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 June 12, 2020; the Forum received payment on June 12, 2020.
On June 15, 2020, Godaddy.Com, Llc confirmed by e-mail to the Forum that the <wasteconnectionsofnebraska.com> domain name is registered with Godaddy.Com, Llc and that Respondent is the current registrant of the name. Godaddy.Com, Llc has verified that Respondent is bound by the Godaddy.Com, Llc 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 June 16, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 6, 2020 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@wasteconnectionsofnebraska.com. Also on June 16, 2020, 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 July 13, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill as Panelist.
On July 13, 2020, Complainant submitted an Additional Submission to the Forum.
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 leading waste services company. Complainant, together with its subsidiaries and affiliates, serves more than seven million residential, commercial, industrial and exploration and production customers across the United States and Canada. As of March 31, 2020, Complainant served the waste hauling needs of residential, commercial, industrial and exploration and production customers in the following 42 states in the United States and six provinces in Canada: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Florida, Georgia, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, Wisconsin and Wyoming, and the provinces of Alberta, British Columbia, Manitoba, Ontario, Québec and Saskatchewan. Complainant and its subsidiary, Waste Connections of Nebraska, Inc. has rights in the mark WASTE CONNECTIONS OF NEBRASKA and uses it extensively in connection with its waste and recycling services in the State of Nebraska. Complainant has rights in the WASTE CONNECTIONS, INC mark based upon registration in the United States in 2009.
Complainant alleges that the disputed domain name is confusingly similar to its WASTE CONNECTIONS, INC mark since it contains the dominant “WASTE CONNECTIONS” portion of Complainant’s mark, simply adding the “of Nebraska” geographic term and the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent has no common law or trademark rights in the WASTE CONNECTIONS, INC mark and is not commonly known by the domain name or authorized to use the mark. Respondent fails to use the disputed domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to promote competing services. Additionally, Respondent’s website does not qualify as a legitimate use as a gripe or complaint site. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent disrupts Complainant’s business by expressing opposition to Complainant’s operations and offering competing services. Additionally, Respondent had actual knowledge of Complainant’s rights in the WASTE CONNECTIONS, INC mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
C. Additional Submission
It its Additional Submission of July 13, 2020, Complainant alleges that, on June 26, 2020, Respondent offered to sell the disputed domain name for a price in excess of out of pocket costs, and that this is additional evidence of bad faith registration and use.
Given that the Complaint contained sufficient evidence to decide the case, the Panel will not consider this tardy Additional Submission.
Complainant has rights in the mark WASTE CONNECTIONS, INC mark dating back to 2009. It uses the mark to provide waste services, including in Nebraska.
The disputed domain name was registered in 2013.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain names to resolve to a web site that promotes competing services.
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 contains the dominant “WASTE CONNECTIONS” portion of Complainant’s mark, and merely adds the “of Nebraska” geographic term and the “.com” gTLD. Addition of geographic terms and a gTLD to the dominant portion of a mark may not overcome confusing similarity between a disputed domain name and a mark per Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (finding that the addition of geographic terms, such as “cancun” to the end of the CHEAPTICKETS mark in the <cheapticketscancun.com>, <cheapticketscancun.biz>, <cheapticketscancun.net>, and <cheapticketscancun.org> domain names, does not overcome a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Forum Feb. 13, 2007) (holding that “the Domain Name is confusingly similar to complainant’s ‘TESCO PERSONAL FINANCE’ mark in that it merely omits the descriptive term ‘personal.’”); see also Wellness Int’l Network, LTD v. Apostolics.com, FA 96189 (Forum Jan. 16, 2001) (finding that the domain name <wellness-international.com> is confusingly similar to the complainant’s WELLNESS INTERNATIONAL NETWORK mark). Thus, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name per 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 of record lists the registrant as “Sam Swartz”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name to promote competing services. Promotion or sale of competing goods or services in connection with a disputed domain name is not a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) or (iii). See Vanguard Trademark Holdings USA LLC v. Dan Stanley Saturne, FA 1785085 (Forum June 8, 2018) (“Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use” where “Respondent is apparently using the disputed domain name to offer for sale competing services.”). Thus the Panel finds that Respondent fails to use the disputed domain for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). And 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 disrupts Complainant’s business by using the disputed domain name to offer competing services. Use of a disputed domain name in competition with a Complainant is evidence of bad faith disruption of business under Policy ¶ 4(b)(iv). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum January 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)). Thus, the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wasteconnectionsofnebraska.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 14, 2020
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