DECISION

 

CommScope, Inc. of North Carolina v. Guang Zhou Ya Tai Xian Lan Ke Ji You Xian Gong Si / Luan Mai

Claim Number: FA1904001839551

 

PARTIES

Complainant is CommScope, Inc. of North Carolina (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA.  Respondent is Guang Zhou Ya Tai Xian Lan Ke Ji You Xian Gong Si / Luan Mai (“Respondent”), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <commscopei.com>, registered with West263 International Limited.

 

PANEL

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.

 

John J. Upchurch as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on April 18, 2019; the Forum received payment on April 18, 2019.

 

On April 18, 2019, West263 International Limited confirmed by e-mail to the Forum that the <commscopei.com> domain name is registered with West263 International Limited and that Respondent is the current registrant of the name.  West263 International Limited has verified that Respondent is bound by the West263 International Limited 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 April 19, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 9, 2019 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@commscopei.com.  Also on April 19, 2019, 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 May 10, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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.

 

PRELIMINARY ISSUE: SUPPORTED LANGUAGE REQUEST

The Panel notes that Complainant requests that the language of this administrative proceeding proceed in the English language pursuant to UDRP Rule 11(a).  Complainant makes this request in light of the Chinese language Registration Agreement.  It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties.  Factors which previous panels have seen as particularly compelling are: WHOIS information which establishes Respondent in a country which would demonstrate familiarity with the English language, filing of a trademark registration with an entity which shows an understanding of the English language, and any evidence (or lack thereof) exhibiting Respondent’s understanding of the Chinese language included in the Registration Agreement.  See The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (panel exercising discretion in deciding that the language of the proceedings advance in English, contrary to the Registration Agreement, based on evidence that respondent has command of the language).  Further, the Panel weighs the relative time and expense in enforcing the Chinese language agreement, which would result in prejudice toward either party.  See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).

 

Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language.  After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.   Complainant

1.    Complainant creates the infrastructure that connects people and technologies, including wired and wireless networks. Complainant has rights in the COMMSCOPE mark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,865,198, registered Nov. 29, 1994). See Compl. Ex. 1A. Respondent’s <commscopei.com> domain name is confusingly similar to Complainant’s COMMSCOPE mark as Respondent incorporates the mark in its entirety while adding the letter “i” and a “.com” generic top-level domain (“gTLD”).

 

2.    Respondent has no rights or legitimate interests in the <commscopei.com> domain name. Respondent is not permitted or otherwise authorized to use Complainant’s COMMSCOPE mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent fails to actively use the disputed domain name. Further, Respondent’s typosquatting demonstrates its lack of rights or legitimate interests in the disputed domain name.

 

3.    Respondent registered and uses the <commscopei.com> domain name in bad faith. Respondent attempts to attract, for commercial gain, users to the disputed domain name by diverting users away from Complainant’s website. Further, Respondent failed to actively use the disputed domain name. Respondent’s typosquatting also evinces bad faith. Finally, Respondent had actual and constructive knowledge of Complainant’s rights in the COMMSCOPE mark prior to registering the disputed domain name.

 

B.   Respondent

1.    Respondent failed to submit a Response.

 

FINDINGS

1.    Respondent’s <commscopei.com> domain name is confusingly similar to Complainant’s COMMSCOPE mark.

 

2.    Respondent does not have any rights or legitimate interests in the <commscopei.com> domain name.

 

3.    Respondent registered and used the <commscopei.com> domain name in bad faith.

 

DISCUSSION

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”).

 

Identical and/or Confusingly Similar

Complainant claims rights in the COMMSCOPE mark based upon registration of the mark with the USPTO (e.g., Reg. No. 1,865,198, registered Nov. 29, 1994). See Compl. Ex. 1A. Registration of a mark with the USPTO is sufficient to establish rights in that mark. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark). The Panel therefore holds that Complainant’s registration of the COMMSCOPE mark with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4(a)(i).

 

Complainant next argues Respondent’s <commscopei.com> domain name is confusingly similar to the COMMSCOPE mark, as the name incorporates the mark in its entirety along with the extra letter “i” and a “.com” gTLD. Such changes are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See Western Alliance Bancorporation v. James Brandon, FA 1783001 (Forum June 5, 2018) (“Respondent’s <westernalliancebcorporation.info> domain name is confusingly similar to Complainant’s WESTERN ALLIANCE BANCORPORATION mark because it merely appends the gTLD ‘.info’ to a misspelled version of Complainant’s mark.”). The Panel therefore determines the <commscopei.com> domain name is confusingly similar to the COMMSCOPE mark per Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).

 

Complainant argues that Respondent has no rights or legitimate interests in the <commscopei.com> domain name, as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the COMMSCOPE mark in any way. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way.  Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Usama Ramzan,” which does not resemble the domain name.  On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”). The WHOIS information of record identifies the registrant of the at-issue domain name as “Guang Zhou Ya Tai Xian Lan Ke Ji You Xian Gong Si / Luan Mai,” and no information on the record indicates Respondent was authorized to register a domain name incorporating Complainant’s mark. The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the <commscopei.com> domain name.

 

Complainant also asserts Respondent’s inactive holding of the <commscopei.com> domain name indicates it does not have rights or legitimate interests in the name. Inactive holding of a domain name does not demonstrate rights or legitimate interests in the name per Policy ¶¶ 4(c)(i) or (iii). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007) (finding that the respondent had no rights or legitimate interests in a domain name under either Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii) where it failed to make any active use of the domain name). Complainant contends Respondent’s domain name does not resolve to an active webpage. See Compl. Ex. 9. The Panel therefore finds Respondent does not have rights or legitimate interests in the domain name per Policy ¶¶ 4(c)(i) or (iii).

 

Furthermore, Complainant claims Respondent’s registration of the <commscopei.com> domain name constitutes typosquatting. Engaging in typosquatting can evince a lack of rights or legitimate interests under Policy ¶ 4(a)(ii). See Webster Financial Corporation and Webster Bank, National Assocation v. Pham Dinh Nhut, FA1502001605819 (Forum Apr. 17, 2015) (“Respondent’s acts of typosquatting provide additional evidence that respondent lacks rights and legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii).”). The Panel recalls Complainant’s contentions that the disputed domain name contains the COMMSCOPE mark along with the letter “i.” Therefore, the Panel agrees with Complainant and finds that Respondent lacks rights or legitimate interests per Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

Complainant also contends Respondent’s intentional use of the <commscopei.com> domain name to create a likelihood of confusion with Complainant’s mark in order to attract Internet users for commercial gain is evidence of Respondent’s bad faith. Use of a confusingly similar domain name for commercial purposes unrelated to a complainant’s business can indicate bad faith registration and use per Policy ¶¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also Metro. Life Ins. Co. v. Bonds, FA 873143 (Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because [r]espondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”). The Panel recalls that the disputed domain name resolves to an inactive website; however, Complainant contends that Respondent attempts to commercially benefit from the goodwill of the COMMSCOPE mark. The Panel determines the evidence indicates Respondent registered and used the at-issue domain name in bad faith per Policy ¶ 4(b)(iv).

 

Complainant asserts that Respondent’s failure to use the <commscopei.com> domain name is evidence of its bad faith. Inactive holding of a domain name can be evidence of bad faith under Policy ¶ 4(a)(iii). See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). The Panel recalls Complainant’s contention that the domain name does not resolve to an active website. See Compl. Ex. 9. The Panel finds Respondent’s inactive holding of the domain name to be evidence of its bad faith per Policy ¶ 4(a)(iii).

 

Complainant further argues that Respondent’s registration of the <commscopei.com> domain name constitutes typosquatting, and this further demonstrates bad faith. Typosquatting is generally behavior recognized as indicating bad faith under Policy ¶ 4(a)(iii). See Webster Financial Corporation and Webster Bank, National Association v. IS / ICS INC, FA 16070016833 (Forum Aug. 11, 2016) (“Typosquatting is a practice whereby a domain name registrant, such as Respondent, deliberately introduces typographical errors or misspellings into a trademark and then uses the string in a domain name. The conniving registrant wishes and hopes that Internet users will inadvertently type the malformed trademark or read the domain name and believe it is legitimately associated with the target trademark. In doing so, wayward Internet users are fraudulently directed to a web presence controlled by the confusingly similar domain name’s registrant.”). The Panel notes that Complainant argues this under Policy ¶ 4(b)(iii); however, typosquatting is generally regarded as bad faith under Policy ¶ 4(a)(iii). Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith Policy ¶ 4(a)(iii).

 

Complainant also contends that in light of the fame and notoriety of Complainant's COMMSCOPE mark, it is inconceivable that Respondent could have registered the <commscopei.com> domain name without actual and/or constructive knowledge of Complainant’s rights in the mark.  The Panel here finds that any arguments of bad faith based on constructive notice are irrelevant, however, because UDRP case precedent declines to find bad faith as a result of constructive knowledge. See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."). The Panel agrees with Complainant, however, that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name and find that actual knowledge is adequate evidence of bad faith under Policy ¶ 4(a)(iii). See 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.”). Complainant further asserts that Respondent’s registration of the disputed domain name, by adding an extra letter to the fully incorporated COMMSCOPE mark, indicates it had actual knowledge of Complainant’s rights. The Panel agrees and finds Respondent had actual knowledge of Complainant’s rights in the mark and thus registered the name in bad faith.

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <commscopei.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

John J. Upchurch, Panelist

Dated:  May 22, 2019