CommScope, Inc. of North Carolina v. Zhi Hong Huang
Claim Number: FA1910001869195
Complainant is CommScope, Inc. of North Carolina (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is Zhi Hong Huang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <commscope.group>, registered with Chengdu West Dimension Digital Technology Co., Ltd..
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 30, 2019; the Forum received payment on October 30, 2019.
On October 30, 2019, Chengdu West Dimension Digital Technology Co., Ltd. confirmed by e-mail to the Forum that the <commscope.group> domain name is registered with Chengdu West Dimension Digital Technology Co., Ltd. and that Respondent is the current registrant of the name. Chengdu West Dimension Digital Technology Co., Ltd. has verified that Respondent is bound by the Chengdu West Dimension Digital Technology Co., Ltd. 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 November 4, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 25, 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@commscope.group. Also on November 4, 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 December 2, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant, CommScope, Inc. of North Carolina, creates the infrastructure that connects people and technologies, including wired and wireless networks.
Complainant has rights in the COMMSCOPE mark based upon the mark’s registration with the United States Patent Office.
Respondent’s <commscope.group> domain name is confusingly similar to Complainant’s mark as Respondent incorporates the entire COMMSCOPE mark, merely adds the “.group” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <commscope.group> domain name. Respondent is not licensed or authorized to use Complainant’s COMMSCOPE mark and is not commonly known by the disputed domain name. Additionally, Respondent is not using the <commscope.group> domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent fails to make an active use of the disputed domain name.
Respondent has registered and used the <commscope.group> domain name in bad faith. Respondent is attempting to disrupt Complainant’s business by attracting Internet users to its website. Additionally, Respondent failed to make an active use of the disputed domain name. Finally, Respondent had actual knowledge or constructive notice of Complainant’s COMMSCOPE mark prior to registering the <commscope.group> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the COMMSCOPE mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the COMMSCOPE trademark.
Respondent holds the <commscope.group> domain name passively.
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”).
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest that the Respondent is conversant and proficient in the English language. Respondent’s use of the English descriptive top-level domain name “.group” as the domain name’s top-level, and selection of Complainant’s COMMSCOPE mark as the domain name’s second-level, a term which carries no meaning in the Chinese language, gives rise to an unrebutted presumption that Respondent is proficient in English. Further, Complainant asserts that it would be unfairly burden if it were compelled to move forward in Chinese. Therefore, the Panel concludes that this proceeding should be in English. Morgan Stanley v. NaShan, FA1703414 (Forum Dec. 14, 2016) (holding proceedings in English language because the registration of a .store domain “primarily targets English-speaking Internet users” and the disputed name contains English words); see also, The Toronto-Dominion Bank v. Long Xiang, FA1817214 (Forum Dec. 11, 2018) (holding the proceeding should proceed in English because the term TD BANK, which is the dominant portion of one of the two disputed domain names at issue, does not carry any specific meaning in the Chinese language); see also, Siemens AG v. Li Chang Kong, D2017-1968 (WIPO) (proceeding with English language despite Chinese registration agreement because the disputed domain names consisted of Latin letters, rather than Chinese characters).
The at-issue domain is confusingly similar to a trademark in which Complainant has rights.
Complainant shows that it has a USPTO registration for its COMMSCOPE trademark. Such registration is sufficient to demonstrate Complainant’s rights in the COMMSCOPE mark under Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Respondent’s <commscope.group> domain name contains Complainant’s COMMSCOPE trademark followed by the top-level domain name “.group”. The difference between Respondent’s domain name and Complainant’s trademark is insufficient to distinguish the <commscope.group> domain name from the COMMSCOPE trademark for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <commscope.group> domain name is identical to Complainant’s trademark. See Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Zhi Hong Huang” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <commscope.group> domain name. The Panel therefore concludes that Respondent is not commonly known by the <commscope.group> domain name for the purposes of Policy ¶ 4(c)(ii). See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
Additionally, Respondent fails to make use of its <commscope.group> domain name. The domain name addresses an inactive webpage which exclusively features a notice stating “This site cannot be reached”. Respondent’s passive holding of the at-issue domain name indicates neither a bona fide offering of goods or services under Policy ¶ 4 (c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Michelin North America, Inc. v. Energie Media Group, FA 451882 (Forum Aug. 7, 2012). In Michelin North, the panel found that inactive use, or “passive holding,” of the disputed domain name by a respondent “permits the inference that [the respondent] lacks rights and legitimate interests in the domain names.”
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there is evidence from which the Panel may conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
As mentioned above regarding rights and interests, Respondent passively holds its trademark identical <commscope.group> domain name; the webpage addressed by the domain name displays only a statement that the site cannot be reached. Respondent’s failure to make an active use of its trademark identical <commscope.group> domain name is evidence of bad faith under Policy ¶ 4(a)(iii). See Marsh Supermarkets Company, LLC, formerly known as Marsh Supermarkets, Inc. v. Choi Sungyeon, FA1312001532854 (Forum Feb. 25, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <marshsupermarkets.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii) because Respondent has failed to make an active use of the disputed domain name.”)
Additionally, Respondent had actual knowledge of Complainant’s rights in the COMMSCOPE mark when it registered <commscope.group> as a domain name. Respondent’s actual knowledge is evident from Respondent’s incorporation of Complainant’s non-descriptive trademark in the at-issue domain name, as-well-as from the notoriety of the COMMSCOPE mark. Respondent’s registration and use of a trademark identical domain name with knowledge of Complainant’s rights in such domain name shows Respondent’s bad faith pursuant to Policy ¶4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <commscope.group> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: December 2, 2019
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