Mediacom Communications Corporation v. Ryan G Foo / PPA Media Services
Claim Number: FA1405001560467
Complainant is Mediacom Communications Corporation (“Complainant”), represented by Robert M. Wasnofski of Dorsey & Whitney LLP, New York, USA. Respondent is Ryan G Foo / PPA Media Services (“Respondent”), Chile.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <meadiacom.com>, registered with Internet.bs Corp.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 20, 2014; the National Arbitration Forum received payment on May 21, 2014.
On May 27, 2014, Internet.bs Corp. confirmed by e-mail to the National Arbitration Forum that the <meadiacom.com> domain name is registered with Internet.bs Corp. and that Respondent is the current registrant of the name. Internet.bs Corp. has verified that Respondent is bound by the Internet.bs Corp. 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 28, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 17, 2014 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@meadiacom.com. Also on May 28, 2014, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 24, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 has rights in the MEDIACOM mark. The MEDIACOM mark is used in connection with a number of services, including cable television transmission and high-speed Internet and telephone services. Complainant uses the <mediacomcc.com> domain name to market its services. Complainant is the owner of the United States Patent and Trademark Office (“USPTO”) registration for the MEDIACOM mark (Reg. No. 2,544,829 registered March 5, 2002). Complainant has registered a multitude of related marks with the USPTO, including the following: MEDIACOM PHONE (Reg. No. 3,437,688 registered May 27, 2008); MEDIACOM ON DEMAND (Reg. No. 2,882,896 registered September 7, 2004); MEDIACOM HDTV HIGH DEFINITION TELEVISION (Reg. No. 3,096,359 registered May 23, 2006); MEDIACOM PHONE SERVICE (Reg. No. 3,437,689 registered May 27, 2008); and more. Respondent’s <meadiacom.com> domain name is confusingly similar to Complainant’s MEDIACOM mark in that Respondent adds the letter “a” and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the <meadiacom.com> domain name. Complainant has not authorized Respondent to use the MEDIACOM mark in a domain name. Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent’s disputed domain name resolves to a website containing a set of pay-per-click hyperlinks, some of which compete with Complainant. Respondent is presumably collecting revenue from its use of the disputed domain name. Respondent’s typosquatting behavior is further evidence that Respondent does not have rights and legitimate interests in the disputed domain name.
Respondent registered and is using the <meadiacom.com> domain name in bad faith. Respondent has a pattern of abusive registrations. Respondent has been the subject of numerous UDRP complaints. Respondent’s use of the disputed domain name disrupts Complainant’s business by depriving it of the right to host a website at the domain name held by Respondent. Respondent also displays links that redirect Internet users to competitors of Complainant. Respondent registered and is using the disputed domain name to take advantage of the goodwill associated with Complainant’s mark as a means to increase traffic to, and revenues derived from, pay-per-click ads for goods and services related to, or competitive with, those offered by Complainant under its MEDIACOM mark. Respondent had actual knowledge of Complainant’s MEDIACOM mark when it registered the disputed domain name. Respondent’s typosquatting behavior is evidence of bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Mediacom Communications Corporation, uses the MEDIACOM mark in connection with a number of services, including cable television transmission and high-speed Internet and telephone services. Complainant is the owner of the United States Patent and Trademark Office (“USPTO”) registration for the MEDIACOM mark (Reg. No. 2,544,829 registered March 5, 2002). Complainant has registered many related marks with the USPTO.
Respondent, Ryan G Foo / PPA Media Services, registered the <meadiacom.com> domain name on October 16, 2005. Respondent’s disputed domain name resolves to a website containing a set of pay-per-click hyperlinks, some of which compete with Complainant.
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant has rights in the MEDIACOM mark under Policy ¶ 4(a)(i) through registration with the USPTO. See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (registration of the mark with the USPTO meets the requirements of Policy ¶ 4(a)(i)). Trademark registration satisfies Policy ¶ 4(a)(i) regardless of whether the respondent lives or operates within the jurisdiction where the mark is registered. See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence).
Respondent’s <meadiacom.com> domain name is confusingly similar to Complainant’s MEDIACOM mark under Policy ¶ 4(a)(i). Respondent adds the letter “a” to Complainant’s MEDIACOM mark and the gTLD “.com.”
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), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).
Respondent is not commonly known by the <meadiacom.com> domain name under Policy ¶ 4(c)(ii). Complainant has not authorized Respondent to use the MEDIACOM mark in a domain name. The WHOIS information for the disputed domain name lists “Ryan G Foo” as registrant. See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
Respondent is not using the <meadiacom.com> domain name to provide a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). Respondent’s disputed domain name resolves to a website containing a set of pay-per-click hyperlinks, some of which compete with Complainant. Respondent’s resolving domain name displays links featuring language including, “Over Your Cable Company?,” “Mediacom Cable Packages,” “Xfinity,” “DISH Official Site,” “Comcast Cable,” and “Rabbit TV- Cable TV.” Respondent is presumably collecting revenue from its use of the disputed domain name and the displayed third-party links. Resolving websites that promote links to the complainant and its competitors does not constitute a bona fide offering of goods or services, or a legitimate noncommercial or fair use. See Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (the respondent’s use of the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise the complainant’s and its competitors’ products, does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)).
Respondent’s <meadiacom.com> domain name is a typosquatted version of Complainant’s MEDIACOM mark due to the addition of the letter “a.” See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). Respondent’s typosquatting also shows that Respondent lacks rights and legitimate interests in the disputed domain name.
Respondent registered and is using the disputed domain name in bad faith because Respondent has a pattern of abusive registrations. Respondent has been the subject of numerous adverse UDRP decisions ordering the transfer of disputed domain names. See, e.g., Homer TLC, Inc. v. PPA Media Services/ Ryan G Foo, FA 1416637 (Nat. Arb. Forum Jan. 13, 2012). Respondent’s history of adverse UDRP decisions is evidence of bad faith under Policy ¶ 4(b)(ii). See Nat’l Abortion Fed’n v. Dom 4 Sale, Inc., FA 170643 (Nat. Arb. Forum Sept. 9, 2003) (finding bad faith pursuant to Policy ¶ 4(b)(ii) because the domain name prevented the complainant from reflecting its mark in a domain name and the respondent had several adverse decisions against it in previous UDRP proceedings, which established a pattern of cybersquatting).
Respondent displays links that redirect Internet users to competitors of Complainant and furthermore earn revenue for Respondent. This conduct is evidence of bad faith registration and use of the<meadiacom.com> domain name under Policy ¶ 4(b)(iii). See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (evidence that the respondent provides links to the complainant’s competitors establishes that bad faith registration and use under Policy ¶ 4(b)(iii)).
Respondent registered and is using the disputed domain name to take advantage of the goodwill associated with Complainant’s mark as a means to increase traffic to Respondent’s domain name and earn revenues derived from pay-per-click ads. Therefore, Respondent’s conduct is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (the respondent’s use of the disputed domain name to operate a website featuring links to competing and non-competing commercial websites from which Respondent presumably receives referral fees is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv)).
Respondent registered the <meadiacom.com> domain name with actual knowledge of Complainant’s rights in the MEDIACOM mark. Therefore, Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Radio & Records, Inc. v. Nat'l Voiceover, FA 665235 (Nat. Arb. Forum May 9, 2006) (Respondent’s registration of the disputed domain name with actual notice of Complainant's rights in the mark constituted registration in bad faith).
Respondent’s typosquatting is evidence of bad faith under Policy ¶ 4(a)(iii). See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <meadiacom.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: July 8, 2014
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