CommScope, Inc. of North Carolina v. Chris Lowe / comm-scope / Chris Lowe / comm-scopes / Chris Lowa / commmscope
Claim Number: FA1707001742149
Complainant is CommScope, Inc. of North Carolina (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is Chris Lowe / comm-scope / Chris Lowe / comm-scopes / Chris Lowa / commmscope (“Respondent”), Massachusetts, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <comm-scope.com>, <comm-scopes.com>, and <commmscope.com>, registered with Wild West Domains, LLC.
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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 28, 2017; the Forum received payment on July 28, 2017.
On August 1, 2017, Wild West Domains, LLC confirmed by e-mail to the Forum that <comm-scope.com>, <comm-scopes.com>, and <commmscope.com> are registered with Wild West Domains, LLC and that Respondent is the current registrant of the names. Wild West Domains, LLC has verified that Respondent is bound by the Wild West Domains, 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 August 3, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 23, 2017 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@comm-scope.com, postmaster@comm-scopes.com, postmaster@commmscope.com. Also on August 3, 2017, 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 August 24, 2017 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant owns registrations for COMMSCOPE mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,865,198, registered Nov. 29, 1994). Complainant uses the mark on or in connection with the creation of telecommunications infrastructure. Respondent’s <comm-scope.com>, <comm-scopes.com> are confusingly similar as they each contain the whole COMMSCOPE mark, the hyphenation, and/or an extra “s” or ”m.”
Respondent has no rights or legitimate interests in <comm-scope.com>, <comm-scopes.com>, and <comm-scope.com>. Respondent is not commonly known by the domain names, nor has Respondent received permission to register Complainant’s mark in any fashion. Furthermore, Respondent uses the domain names to pass itself off as Complainant in furtherance of a fraudulent scheme to phish for internet users’ personal information via email. The resolving webpages contain no substantive content, and are merely parked with no hyperlinks.
Respondent registered and used <comm-scope.com>, <comm-scopes.com>, and <commmscope.com> in bad faith. First, as there are several domain names at issue which infringe on Complainant’s intellectual property rights, a pattern of bad faith is evident per Policy ¶ 4(b)(ii). Next, Respondent’s use in connection with a scheme to defraud internet users under the guise of Complainant disrupts Complainant’s business under Policy ¶ 4(b)(iii). Since this use is designed to confuse and deceive for commercial gain, Policy ¶ 4(b)(iv) is shown as well. Lastly, given Respondent’s use of the domain names and pattern demonstrated of bad faith registrations, Respondent clearly had knowledge of Complainant’s rights, indicating bad faith under Policy ¶ 4(a)(iii).
The panel notes <comm-scope.com>, <comm-scopes.com>, and <commmscope.com> were registered on January 25, 2017, June 4, and June 20, 2017, respectively.
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 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 (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.”).
Preliminary Issue: Multiple Respondents
In the instant proceeding, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” “Complainant contends that <comm-scope.com> and <comm-scopes.com> are listed in the WHOIS as “Chris Lowe” and the WHOIS for <commmscope.com> lists “Chris Lowa.” All domain names allegedly direct to the same parked page. The Panel finds that Complainant has sufficiently presented evidence demonstrating that the listed entities are jointly controlled.
Complainant contends that its registration of the COMMSCOPE mark with the USPTO (Reg. No. 1,865,198, registered Nov. 29, 1994) is sufficient to demonstrate its rights under Policy ¶ 4(a) (i). USPTO registrations are deemed to confer rights in a mark under the Policy. See BGK Trademark Holdings, LLC & Beyonce Giselle Knowles-Carter v. Chanput / Beyonce Shop, FA 1626334 (Forum Aug. 3, 2015) (asserting that Complainant’s registration with the USPTO (or any other governmental authority) adequately proves its rights under Policy Policy ¶ 4(a)(i)). The Panel agrees that Complainant has established rights in the COMMSCOPE mark under Policy ¶ 4(a) (i) by dint of its USPTO registration.
Second, Complainant asserts Respondent’s that <comm-scope.com>, <comm-scopes.com>, and <commmscope.com)> are confusingly similar as they each contain the whole COMMSCOPE mark, and/or an extra “s” or “m.” No such alteration has been deemed distinguishing—in fact, minor misspellings may amount to what is considered “typosquatting.” See Neiman Marcus Group, Inc. v. Party Night, Inc. FA 114546 (Forum July 23, 2002) (finding that the <neimanmacus.com> domain name was a simple misspelling of the complainant’s NEIMAN MARCUS mark and was a classic example of typosquatting, which was evidence that the domain name was confusingly similar to the mark); see also PathAdvantage Associated v. VistaPrint Technologies Ltd, FA 1625731 (Forum July 23, 2015) holding that the <pathadvantages.com> domain name was confusingly similar to the PATHADVANTAGE trademark because the domain name “merely adds the letter ‘s’ to Complainant’s mark); see also Microsoft Corp v. Domain Registration Philippines, FA 877979 (Forum Feb. 20, 2017) (finding the respondent’s <Microssoft.com> domain name to be confusingly similar to the complainant’s MICROSOFT mark because they differ by only one letter, and “such a small alteration is insufficient to avoid a finding of confusing similarity under Policy ¶ 4(a)(i)”). Accordingly, the panel finds Respondent’s <comm-scope.com>, <comm-scopes.com>, and <commmscope.com> are confusingly similar to the COMMSCOPE mark in which Complainant has established rights.
Complainant contends that Respondent has no rights or legitimate interests in <comm-scope.com>, <comm-scopes.com>, and <commmscope.com>. Complainant argues Respondent is not commonly known by the domain names, nor has Respondent received permission to register Complainant’s mark in any fashion. Respondent has failed to add any additional evidence to the record for the Panel’s consideration. The Panel therefore finds no basis for finding that Respondent is commonly known by the domain names per Policy ¶ 4 (c) (ii). See IndyMac F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and filed to submit evidence that it is commonly known by the domain name).
Furthermore, Complainant asserts that Respondent uses the domain names to pass itself off as Complainant in furtherance of a fraudulent scheme to phish for Internet users’ personal information via email. The resolving webpages contain no substantive content, and are merely parked with no hyperlinks. Use of domain names to phish cannot confer rights; nor can failing to use a resolving website. See Chevron Intellectual Property LLC v. Thomas Webber / Chev Ronoil Recreational Sport Limited, FA 1661076 (Forum Mar. 15, 2016) (Finding that the respondent had failed to provide a bona fide offering of goods or services or any legitimate noncommercial or fair use, stating, “Respondent is using an email address to pass themselves off as an affiliate of Complainant. Complainant presents evidence showing that the email address that Respondent has created is used to solicit information and money on false pretenses. The disputed domain name is being used to cause the recipients of these emails to mistakenly believe Respondent has a connection with Complainant and is one of the Complainant’s affiliates.”); see also Hewlett-Packard Co. v. Shermesh, FA 434145 (Forum Apr. 20, 2005) (“The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy
¶ 4(c)(iii).”). The Panel therefore agrees that in light of the available evidence, there exists no indication of any bona fide offering of goods or services or any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
Thus, Complainant has also satisfied Policy ¶ 4(a)(ii).
Complainant urges that Respondent registered and used <comm-scope.com>, <comm-scopes.com>, and <commmscope.com> in bad faith. First, while there are several domain names at issue which purportedly infringe on Complainant’s intellectual property rights, Complainant contends that a pattern of bad faith is evident per Policy ¶ 4(b)(ii). Registration of three domain names incorporating a complainant’s mark has been deemed bad faith. See Microsoft Corporation and Skype v. Zhong biao zhang / Unknown company /zhong zhang, FA 1538218 (Forum Feb. 20, 2014) (holding that the respondent’s registration of three domain names incorporating variants of the complainant’s SKYPE mark reflected a pattern of bad faith registration under Policy ¶ 4(b)(ii)). Accordingly, the Panel finds that Respondent registered the domain names as part of a pattern of such conduct as proscribed by Policy ¶ 4(b)(ii).
Next, Respondent’s use in connection with an alleged scheme to defraud Internet users under the guise of Complainant disrupts Complainant’s business under Policy ¶ 4(b)(iii). Phishing schemes have been deemed to constitute bad faith. See generally Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA 1625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”). Complainant has provided evidence that Respondent has used the domain names as an email suffix and has solicited third parties to submit personally identifiable information. The Panel agrees that this is harmful conduct which can constitute bad faith in a number of circumstances, which include disruption of Complainant’s legitimate business under Policy ¶ 4(b)(iii) and attraction for commercial gain under Policy ¶ 4(b)(iv).
Finally, Complainant argues that Respondent had knowledge of Complainant’s rights in the COMMSCOPE mark. Complainant argues that Respondent’s pattern of bad faith and Respondent’s phishing emails/passing off behavior indicate that Respondent had actual knowledge of Complainant’s mark and rights. The Panel agrees that Respondent had actual knowledge of Complainant’s mark and rights and therefore determines that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder Firma Amsterdam v. Moscow Studies, 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 name”).
Thus, Complainant has also satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that <comm-scope.com>, <comm-scopes.com>, and <commmscope.com> be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: September 7, 2017
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