CommScope, Inc. of North Carolina v. Port Masteee
Claim Number: FA2201001981875
Complainant is CommScope, Inc. of North Carolina (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is Port Masteee (“Respondent”), Georgia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <connmscope.com>, registered with NameCheap, Inc.
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 January 25, 2022; the Forum received payment on January 25, 2022.
On January 25, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <connmscope.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 January 26, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 15, 2022 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@connmscope.com. Also on January 26, 2022, 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 February 21, 2022, 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 engages in a business offering a variety of communications services and products.
Complainant asserts rights in the COMMSCOPE mark through its registration of the mark with the United States Patent and Trademark Office (USPTO).
Respondent’s <connmscope.com> domain name is identical or confusingly similar to Complainant’s COMMSCOPE mark, as it incorporates the mark in its entirety, only replacing the letter “m” with two “n” letters, creating an impression of a letter “m”, and adding the “.com” generic top-level domain (gTLD).
Respondent has no rights or legitimate interests in the at-issue domain name. Complainant has not authorized or licensed Respondent to use the COMMSCOPE mark, nor is Respondent commonly known by the domain name. Further, Respondent is not using the at-issue domain name in connection with a bona fide offering of goods and services or legitimate noncommercial or fair use because the resolving website is currently inactive and lacks any substantive content.
Respondent registered and uses the <connmscope.com> domain name in bad faith. Respondent attempts to disrupt Complainant’s business by redirecting users to an inactive website. Further, Respondent’s mere holding of the at-issue domain name for an inactive website is indication of bad faith. Respondent also had actual notice of Complainant’s rights in the COMMSCOPE mark, evidenced by Respondent’s use of a unique mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the COMMSCOPE mark.
Respondent registered the at-issue domain name after Complainant acquired rights in COMMSCOPE.
Complainant’s has not authorized Respondent to use Complainant’s trademark.
Respondent holds the at-issue 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”).
The at-issue domain name is confusingly similar or identical to a trademark in which Complainant has rights.
Complainant’s ownership of a USPTO registration for its COMMSCOPE trademark demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
Respondent’s <connmscope.com> domain name contains an intentional misspelling of Complainant’s COMMSCOPE trademark where in the mark’s first “m” is replace by a similarly appearing double “n” with all followed by the top-level domain name, “.com.” The differences between Complainant’s trademark and Respondent’s domain name are insufficient to distinguish one from the other for the purposes of the Policy. Therefore, the Panel finds that Respondent’s <connmscope.com> domain name is confusingly similar to Complainant’s COMMSCOPE trademark under Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Zhichao Yang, FA 1780211 (Forum May 3, 2018) (“Additionally, each at-issue domain name contains a misspelling or misprint of Complainant’s CLIPS4SALE and CLIPS4SALE.COM trademarks where an extra letter is added to the marks in forming the domain name. Further, there is no doubt that Respondent picked the at-issue domain names precisely because they are easily confused with Complainant trademarks and Complainant’s trademarked <clips4sale.com> website.”).
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).
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 legitimate interests in respect of the at-issue domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
The WHOIS information for the at-issue domain name indicates “Port Masteee” as the domain name’s registrant and there is no evidence before the Panel that otherwise indicates Respondent is commonly known by the <connmscope.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the disputed domain names because the WHOIS information listed “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't” as the registrant and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute).
Browsing to <connmscope.com> returns a parking page with no substantive content. Respondent’s passive holding of the at-issue domain name shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Dell Inc. v. link growth / Digital Marketing, FA 1785283 (Forum June 7, 2018) (“Respondent’s domain names currently display template websites lacking any substantive content. The Panel finds that Respondent has does not have rights or legitimate interests with respect of the domain name per Policy ¶¶ 4(c)(i) or (iii).”).
Given the forgoing, Complainant conclusively demonstrates Respondent’s lack of rights and lack of interests in the <connmscope.com> domain name.
The at-issue domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present from which the Panel concludes that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First as mentioned above regarding rights and legitimate interests, Respondent fails to make active use of the domain name as the domain name addresses a parking page. Respondent’s passive holding of the domain name shows Respondent’s bad faith registration and use of the domain name per Policy ¶ 4(a)(iii). See Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018) (“Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent uses the domain name to host an inactive website.”).
Next, Respondent had actual knowledge of Complainant’s rights in COMMSCOPE mark when it registered <connmscope.com> as a domain name. Respondent’s prior knowledge of Complainant’s trademark is evident because of the mark’s notoriety and because the mark is a coined term. Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s rights in such domain name shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) (“Complainant contends that Respondent’s knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii).”); see also G.D. Searle & Co. v. 24-7-Commerce.com, FA 114707 (Forum July 31, 2002) (“It is evident that Respondent knew of Complainant’s rights in the CELEBREX mark since Complainant coined [the term “Celebrex”] and Respondent uses the mark in conjunction with marks of Complainant’s competitors.”).
Moreover, Respondent engages in typosquatting. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark and then uses the malformed string in a domain name hoping that internet users will accidently type such string when searching for products or services associated with the target trademark, or as intended in the instant case internet users will read the misspelled trademark laden domain name and confuse it with its target trademark. Although Complainant’s COMMSCOPE trademark is misspelled in the at-issue domain name by substituting an “m” with “nn” Complainant’s trademark is nevertheless recognizable when reading Respondent’s <connmscope.com> domain name. Notably, Respondent’s intentional misspelling of COMMSCOPE within Respondent’s <connmscope.com> domain name is indicative of Respondent’s desire to use the domain name to inappropriately exploit Complainant’s COMMSCOPE trademark. Respondent’s typosquatting, in itself, is evidence of Policy ¶ 4(a)(iii) bad faith. See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)); see also, Sports Auth. Mich., Inc. v. Skander, FA 135598 (Forum Jan. 7, 2002) (stating that “[b]y registering the ‘typosquatted’ domain name in [Complainant’s] affiliate program, Respondent profits on the goodwill of [Complainant’s] protected marks and primary Internet domain names,” which is evidence of bad faith registration and use).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <connmscope.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: February 22, 2022
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