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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

ServiceMaster Brands, LLC v. Texas International Property Associates

Case No. D2009-1108

1. The Parties

The Complainant is ServiceMaster Brands, LLC of Vermont, United States of America represented by internally.

The Respondent is Texas International Property Associates of Texas, United States of America.

2. The Domain Name and Registrar

The disputed domain name <wwwmerrymaids.com> is registered with Compana LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 18, 2009. On August 18, 2009, the Center transmitted by email to Compana LLC a request for registrar verification in connection with the disputed domain name. On August 19, 2009, Compana LLC 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 August 19, 2009 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 August 19, 2009. 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 25, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was September 14, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent`s default on September 15, 2009.

The Center appointed Craig Edward Stein as the sole panelist in this matter on September 21, 2009. 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 is a subsidiary of The ServiceMaster Company, which, in turn, holds three trademark registrations that are relevant to this dispute. These marks include Service Mark Reg. No. 1,343,329 on the United States Patent and Trademark Office ("USPTO") Principal Register for MERRY MAIDS dated June 18, 1985 for Commercial and Residential Cleaning Services in Class 37; Service Mark Reg. No. 1,343,330 on the USPTO Principal Register for MERRY MAIDS,INC . with the stylized design of a pail with cleaning utensils, dated the same date and in the same classification; and, Service Mark Reg. No. 2,512,613 dated November 27, 2001 for MERRY MAIDS Franchising Services, namely offering technical assistance in the establishment or operation or both of commercial and residential cleaning services in Class 35. These marks have been used in commerce as early as 1980.

The Complainant`s MERRY MAIDS brand denotes its cleaning services business and the franchising of such businesses throughout North America. The Complainant registered the domain name <merrymaids.com> on November 23, 1994. The web page to which the Complainant`s domain name resolves allows current and potential customers to contact the Complainant to inquire about or retain its services.

The Respondent registered the Domain Name in dispute in 2005. The web page to which it resolves is a landing page that lists click-through links to the web sites of the Complainant`s competitors. See Gaylord Entertainment Company v. Nevis Domain LLC, WIPO Case No.. D2006-0523 (in-depth discussion regarding the various types of landing pages and the use of click-through advertisements).

The Complainant sent correspondence via Federal Express and Certified Mail as well as an e-mail in an attempt to resolve the dispute over the Respondent`s domain name. The Federal Express package was returned as undeliverable, the certified letter was accepted and a signed return receipt was provided to the Complainant. No response to these entreaties was ever received by the Complainant.

5. Parties` Contentions

A. Complainant

1. Enforceable Trademark Rights

The Complainant contends that it has a registration for the MERRY MAIDS mark, that its trademark registration is valid and subsisting, and that it serves as prima facie evidence of the Complainant`s ownership and the validity of the Mark. 15 U.S.C. § 1115. The Complainant further alleges that its registration is incontestable and conclusive evidence of its exclusive right to use the mark in connection with the stated goods. 15 U.S.C. §§ 1065 and 115(b).

2. Confusing Similarity

The Complainant asserts that the Domain Name in dispute contains an intentional typographic error by deleting the period, or full-stop, after the pre-fix "www" before its trademark "Merry Maids." According to the Complainant, this deletion leads to confusion among Internet users who mistakenly mistype the Domain Name that would otherwise result in a search that leads to its web page for the Merry Maids brand.

3. No Rights or Legitimate Interests and Registration and Use of in Bad Faith

The Complainant maintains that the Respondent has never sought its permission to use the MERRY MAIDS mark, and that it has no legitimate interest in the marks. So too, the Complainant argues that including a deliberate typographical error into the Domain Name in dispute evidences that the challenged Domain Name was registered in bad faith. Moreover, the Complainant contends that by using a landing page with click-through advertisements to competing web sites demonstrates that the Respondent is currently using the disputed Domain Name in bad faith.

B. Respondent

The Respondent did not reply to the Complainant`s contentions.¹ Nevertheless, beginning in February 2007 until the date of this decision, this same Respondent has appeared as a Respondent in 107 decided WIPO Domain Name disputes and 153 decided Domain Name disputes administered by the National Arbitration Forum. In a substantial number of the 260 previous administrative decisions, the same Respondent has replied to the complaints; describing its business and, generally, defending its conduct as follows.

The Respondent is in the business of registering and holding thousands of domain names. The Respondent has stated in previous cases that it has a legitimate interest in offering targeted advertising searches in cooperation with advertising affiliate networks such as Google and Yahoo! and receiving advertising revenue from searches that reach third-party web pages via its landing pages, the content of which, the Respondent has asserted, is solely controlled by the terms upon which third parties bid with affiliate network sponsors. The Respondent has also maintained that it has no control over the content of its respective landing pages. Respondent further has asserted that this lack of control demonstrates that it is not acting in bad faith, but rather is in the business of providing locator services and is not attempting to pass itself off as Complainant or any related company. See, e.g., Reece & Nichols Realtors, Inc. v. Texas International Property Associates, WIPO Case No. D2008-0494.

6. Discussion and Findings

A. Standards and Burden of Proof

Under paragraph 4(a) of the Policy, the Complainant must prove each of the following:

i) the domain name in issue is identical or confusingly similar to the Complainant`s trademark or service mark; and

i) the Respondent has no rights or legitimate interests in respect of the domain name; and

iii) the domain name has been registered and is being used in bad faith.

Paragraph 4(b) of the Policy sets out four illustrative, non-exclusive circumstances, which, if demonstrated by the Complainant, for the purposes of paragraph 4(a)(iii) shall be deemed evidence of a Respondent`s bad faith registration and use of a challenged domain name.

Paragraph 4(c) of the Policy sets out three descriptive, non-exclusive situations, any one of which, if proved by a Respondent, shall be considered as evidence of the Respondent`s rights to or legitimate interests in the domain name for the purpose of paragraph 4(a)(ii).

In light of the Respondent`s default, the Panel accepts as true all of the reasonable factual allegations contained in the Complaint. See Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009.

B. Identical or Confusingly Similar

The Complainant has established that it has rights in the MERRY MAIDS mark and that the protected mark is contained within the disputed Domain Name. The only question that remains is whether the addition of the three letters "www" preceding the mark in any manner affects whether the challenged Domain Name is either identical or confusingly similar.

The pre-fix "www" was not generated by chance. Rather, common sense dictates that when the letters "www" are used in connection with the Internet, that the pre-fix stands for the Uniform Resource Locator ("URL") "world wide web." A misplaced URL simply has no effect in a UDRP proceeding. See, Scania CV AB (Pubi) v. Unaci, Inc., WIPO Case No. D2005-0585. Indeed, just as the addition of the suffix ".com" as the generic top-level domain ("gTLD") has been found not to effect the determination of a mark`s efficacy as contained in a second-level domain name ("SLD"), so too the inclusion of "www" without a period pre-ceding a trademark in a second-level domain name has been found to have absolutely no effect on the mark`s viability for purposes of the Policy. See CSC Holdings, Inc. v. Elbridge Gagne, WIPO Case No. D2003-0273. To the contrary, it has been uniformly held that the inclusion of "www" without a period before a trademark in the second-level domain name is evidence of deliberate typo-squatting, which the Policy is specifically designed to remedy. See e.g., Advance Magazine Publishers Inc. d/b/a Conde Nast Publications v. MSA, Inc. and Moniker Privacy Services, WIPO Case No. D2007-1743.

Here, the Respondent has intentionally married the "www" acronym to a well-established service mark. The missing period is nothing but a classic typographical error. Thus, there can be no other conclusion but that the Domain Name in dispute is identical or confusingly similar to the mark in which the Complainant has established and demonstrated rights. See paragraph 4(a)(i) of the Policy.

Accordingly, the Complainant prevails on the first prong of the Policy`s test.

C. Rights or Legitimate Interests

The Panel turns to the language contained in WIPO Overview of WIPO Panel Views on Selected UDRP Questions which clearly articulates the consensus view for the procedure to follow in determining whether the Complainant has proven this prong of the Policy requirements. As stated at Section 2.1,

"While the overall burden of proof rests with the Complainant, Panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is often primarily within the knowledge of the Respondent. Therefore, a Complainant is required to make out an initial prima facie case that the Respondent lacks rights or legitimate interests. Once such prima facie case is made, Respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the Respondent fails to do so, a Complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP."

Here, there is no evidence that the Respondent has any rights or legitimate interest in the challenged Domain Name. Indeed, the Respondent`s manifest typo-squatting is the exact obverse of either fair or legitimate non-commercial use of a domain name. See Time Warner Entertainment Company, L.P., and Hanna-Barbera Productions Inc. v. John Zuccarini, Cupcake Patrol and the Cupcake Patrol, WIPO Case No. D2001-0184.

In any event, the Respondent`s failure to reply to the Complaint, especially in light of its many previous responses in dozens of the 260 previous domain name disputes, militates in favor of an assumption that if there was a legitimate use, the Respondent would have raised one. Here, it did not. See Bayer Aktiengeselischaft v. Yongho Ko, WIPO Case No. D2001-0205 (challenge to <wwwbayer.com> upheld).

Thus the Complainant prevails on the second prong of the Policy as well.

D. Registered and Used in Bad Faith

By directing an Internet user to a landing page that contains links to web sites that compete with the Complainant`s business, all for a fee, this Respondent has exhibited conduct that fits into the classic illustration of bad-faith registration as detailed in paragraph 4(b) of the Policy ("by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website…by creating a likelihood of confusion with the complainant`s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location."). See also, Corrections Corporation of America v. Texas International Property Associates, WIPO Case No. D2008-0280 (transferring, among others, the disputed domain name <wwwcorrectionscorp.com>).

In addition, in the 260 previous Domain Name disputes determined in the two and one-half year period cited above, in all but a handful of those decisions, this Respondent was found to have registered, in bad faith, domain names which were identical to or confusingly similar to registered trademarks. Such conduct, while not wholly determinative, raises the presumption that the Respondent has engaged in a pattern of flagrantly abusive registration. See Backstreet Productions, Inc. v. John Zuccarini, CupcakeParty, Cupcake Real Video, Cupcake-Show and Cupcakes-First Patrol, WIPO Case No. D2001-0654; National Football League Players Association v. Cayman Trademark Trust d/b/a Trademark, WIPO Case No. D2005-0234.

Similarly, the Respondent`s click-through links divert business away from the Complainant`s web site. By trading on the Complainant`s service mark, such diversion is also considered to constitute per se bad faith under the Policy. See Symark International, Inc. v. Gary McCurty, WIPO Case No. D2005-0235.

Likewise, the alleged lack of control over the content of the landing page to which a domain name resolves has been rejected as a defense by previous panels, especially in light of other indicia of bad faith, such as is present here. See, Gaylord Entertainment Company v. Nevis Domains LLC, supra, and Reece & Nichols Realtors v. Texas International, supra.

So too, the Respondent`s failure to reply to the Complainant`s cease and desist communications prior to the institution of this proceeding supports a finding of bad faith. As the Panel stated in Teledyne Technologies Incorporated v. Texas International Property Associates – NA NA, WIPO Case No. D2009-0814: "[i]f Respondent wanted to avoid a finding of bad faith…it could have made arrangements to transfer the [disputed] domain name…without putting Complainant to the effort and expense of [a UDRP] proceeding."

Therefore, the Complainant has established the third prong of the Policy on which it must prevail.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <wwwmerrymaids.com> be transferred to the Complainant.

Craig Edward Stein
Sole Panelist

Date: September 27, 2009