CommScope, Inc. of North Carolina v. Mathys Loubser / Cafe drink
Claim Number: FA1903001836489
Complainant is CommScope, Inc. of North Carolina (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is Mathys Loubser / Cafe drink (“Respondent”), South Africa.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <commscopee.com> (‘the Domain Name’), registered with Tucows Domains Inc.
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 March 29, 2019; the Forum received payment on March 29, 2019.
On March 29, 2019, Tucows Domains Inc. confirmed by e-mail to the Forum that the <commscopee.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 March 29, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 18, 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@commscopee.com. Also on March 29, 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 April 19, 2019 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’s contentions can be summarized as follows:
The Complainant is the owner of the COMMSCOPE mark in the USA for communications products and services, registered since 1994 and used since 1969. It has owned CommScope.com since 1994.
The Domain Name registered in 2018 is confusingly similar to the Complainant’s mark adding only an extra ‘e’ and the gTLD “.com” which does not prevent such confusing similarity.
Respondent does not have rights or legitimate interests in the Domain Name, not being commonly known by the Domain Name or authorized by the Complainant. There has been no use of the Domain Name, which is an example of typosquatting, and this cannot be a bona fide offering of goods or services or a noncommercial legitimate fair use.
Typosquatting is bad faith per se and designed to disrupt the Complainant’s business showing knowledge of the Complainant and its business. Respondent’s failure to make active use of the Domain Name is bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the COMMSCOPE mark registered in the USA for communications products and services since 1994. It has also owned CommScope.com since 1994.
The Domain Name registered in 2018 has not been used.
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”).
Identical and/or Confusingly Similar
The Domain Name consists of the Complainant’s COMMSCOPE mark (registered, inter alia in the USA for communication goods and services since 1994), the letter ‘e’ and the gTLD “.com.” Panels have found that adding one letter does not distinguish a domain name from that mark. See Twitch Interactive, Inc. v. Antonio Teggi, FA 1626528 (Forum Aug. 3, 2015) (finding that twitcch.tv is confusingly similar to the TWITCH TV trade mark because the domain name consisted of a common misspelling of the mark by merely adding the letter ‘c’).
The gTLD .com does not serve to distinguish the Domain Name from the COMMSCOPE mark, which is the distinctive component of the Domain Name. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose to a mark in which the Complainant has rights.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sep. 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).
There has been no use of the mark. See Hewlett-Packard Co. v. Shemesh, FA 434145 (Forum Apr. 20, 2005) (Where the panel found inactive use is not a bona fide offering of goods or services pursuant to Policy 4(c)(i)).
Typosquatting, the practice of registering a domain name containing common typing errors in a complainant’s mark, can indicate a lack of rights and legitimate interests in a domain name under Policy ¶ 4(a)(ii). See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”).
As such, the Panelist 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 Respondent has not answered this Complaint or explained why it should be allowed to register a domain name containing a sign confusingly similar to the Complainant’s well known mark in what appears on the face of it to be a typosquatting registration.
Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) ('registering a domain name which entirely incorporates a famous mark with additional letter (s) in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith).
As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy. There is no need to consider any additional grounds of bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <commscopee.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: April 20, 2019
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