Mediacom Communications Corporation v. domain admin
Claim Number: FA2105001944730
Complainant is Mediacom Communications Corporation (“Complainant”), represented by Robert M. Wasnofski, Jr. of Dentons US LLP, Illinois, USA. Respondent is domain admin (“Respondent”), Hong Kong.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mediacombolt.com>, (‘the Domain Name’) registered with Dynadot, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 11, 2021; the Forum received payment on May 11, 2021.
On May 13, 2021, Dynadot, LLC confirmed by e-mail to the Forum that the <mediacombolt.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 May 17, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 7, 2021 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@mediacombolt.com. Also on May 17, 2021, 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 June 11, 2021 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant is a communications company which owns the trade mark MEDIACOM registered, inter alia, in the United States with first use in commerce recorded as 1995. The Complainant applied to register MEDIACOM BOLT on April 7, 2021. The Domain Name was registered three days later on April 10, 2021 and has been connected to a site offering it for sale for US $990.
The Domain Name is confusingly similar to the MEDIACOM trade mark adding the word ‘bolt’ which adds to the likelihood of confusion because of the Complainant’s trade mark application referred to above. “.com” is a generic Top Level Domain (‘gTLD’) indicator Internet users must use as part of a domain name and should be omitted in the confusing similarity comparison.
The Respondent does not have any rights or legitimate interests in the Domain Name. The Domain Name has been offered for sale for $990, a sum in excess of the costs of registration. This is not a bona fide offering of services or goods or a legitimate noncommercial or fair use.
The Respondent is not commonly known by the Domain Name and has never been given permission by the Complainant to use the Complainant’s trade mark for any purpose.
The Domain Name has been registered and used in bad faith. Offering it for sale for $990 demonstrates the Complainant’s primary intention behind registering the Domain Name is selling it for financial gain. The timing of the registration of the Domain Name after the Complainant’s trade mark application for the same sequence of words ‘MEDIACOM BOLT’ shows actual knowledge of the Complainant and its rights. The Respondent did not reply to a cease and desist letter from the Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is a communications company which owns the trade mark MEDIACOM registered, inter alia, in the United States with first use in commerce recorded as 1995. It applied to register MEDIACOM BOLT on April 7, 2021. The Domain Name was registered three days later on April 10, 2021 and has been offered for sale generally for US $990.
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 Domain Name consists of the Complainant’s MEDIACOM mark, the word ‘bolt’ and the gTLD “.com”.
The addition of the word ‘bolt’ does not prevent confusing similarity between the Domain Name and the Complainant’s mark which is still recognizable in the Domain Name. The gTLD “.com” does not distinguish the Domain Name from the Complainant’s mark as the “.com” element of the Domain Name is merely functional in this case and, in such a context traditionally disregarded for the purposes of the Policy. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain as the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purposes of the Policy with a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Respondent has not answered this Complaint and is not authorized by the Complainant. The Respondent does not appear to be commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The site attached to the Domain Name offers the Domain Name containing the Complainant’s mark for sale for $990, a sum in excess of the costs of registration which is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Twentieth Century Fox Film Corporation v. Diego Ossa, FA1501001602016 (Forum Feb. 26, 2015)
As such the Panel finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Domain Name containing the Complainant’s MEDIACOM mark has been offered for sale for profit for $990, a sum in excess of out of pocket costs relating to the Domain Name. See Deutsche Lufthansa AG v. Kenechukwu Okoli, FA 1821759 (Forum Jan. 13, 2019) (“The domain name’s website listed the domain name for sale for $9,150. Respondent also contacted Complainant directly to offer the domain name for sale. Doing so suggests bad faith registration and use of the <lufthansamiles.com> domain name pursuant to Policy ¶ 4(b)(i).”).
The fact that the Domain Name was registered three days after the Complainant applied for a trade mark in the United States for the mark MEDIACOM BOLT demonstrates opportunistic bad faith and knowledge of the Complainant on the part of the Respondent. See Arizona Board of Regents, for and on behalf of Arizona State University v. Weiping Zheng, FA1504001613780 (Forum May 28, 2015) (finding that the respondent had acted in opportunistic bad faith according to Policy ¶ 4(a)(iii), when it registered the disputed domain name just one week after the complainant filed applications to register the SUB DEVIL LIFE mark, and just days after those applications became public through the USPTO’s website).
As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith primarily for the purposes of sale for profit and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mediacombolt.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: June 14, 2021
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page