CommScope, Inc. of North Carolina v. No Reply
Claim Number: FA1904001837199
Complainant is CommScope, Inc. of North Carolina (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is No Reply (“Respondent”), Tennessee, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <commcope.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 April 3, 2019; the Forum received payment on April 3, 2019.
On April 3, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <commcope.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 April 3, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 23, 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@commcope.com. Also on April 3, 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 25, 2019, 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 has played a role in virtually all of the world’s best communication networks. Complainant creates the infrastructure that connects people and technologies, including wired and wireless networks.
Complainant has rights in the COMMSCOPE mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <commcope.com> domain name is confusingly similar to Complainant’s mark as it removes the letter “s” from Complainant’s mark while adding the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <commcope.com> domain name. Respondent is not commonly known by the at-issue domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent fails to make an active use of the domain name. Further, Respondent engaged in typosquatting by registering a domain name containing a minor typographical error.
Respondent registered and uses the <commcope.com> domain name in bad faith. Respondent registered the domain name to trade upon Complainant’s goodwill and misdirect traffic to its site, which disrupts Complainant’s business by at least preventing consumers who mistakenly typed the domain name in a browser address from locating Complainant. Further, Respondent fails to place any content on the resolving webpage associated with the domain name. Additionally, Respondent engaged in typosquatting. Finally, Respondent had actual knowledge of Complainant’s rights in the COMMSCOPE mark given the goodwill associated with the distinctive mark and Respondent registering a typosquatted variation of Complainant’s mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the COMMSCOPE mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the COMMSCOPE trademark.
Respondent fails to make any active use of the domain name and engages in typosquatting.
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 to a trademark in which Complainant has rights.
Complainant’s ownership of USPTO trademark registrations for the COMMSCOPE mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Additionally, the at-issue domain name contains Complainant’s COMMSCOPE trademark less its “s” followed by the top level domain name “.com.” The slight differences between the <commcope.com> domain name and Complainant’s COMMSCOPE trademark are insufficient to distinguish the domain name from the trademark for the purposes of the Policy. Therefore, the Panel finds that pursuant to Policy ¶ 4(a)(i) Respondent’s <commcope.com> domain name is confusingly similar to Complainant’s COMMSCOPE trademark. See Vanguard Trademark Holdings USA LLC v. Shuai Wei Xu / Xu Shuai Wei, FA 1784238 (Forum June 1, 2018) (“Respondent arrives at each of the disputed domain names by merely misspelling each of the disputed domain names and adding the gTLD ‘.com.’ This is insufficient to distinguish the disputed domain names from Complainant’s trademark.”).
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). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
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 interests in respect of the at‑issue domain name.
WHOIS information for the at-issue domain name identifies the domain name’s registrant as “No Reply” and the record before the Panel contains no evidence that otherwise tends to prove that Respondent is commonly known by the <commcope.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent holds the at-issue domain name inactively. On browsing to the domain name one is shown a message stating that “Website not available. The website you requested cannot be accessed. It may work if you try again later.” Holding the <commcope.com> domain name inactively in this manner is 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).”).
Respondent is also engaged in typosquatting. Respondent’s typosquatting further indicates Respondent’s lack of 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). 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).”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the domain name pursuant to Policy ¶ 4(a)(ii).
The at-issue domain name was registered and used in bad faith. Policy ¶ 4(b) bad faith circumstances are present and there is additional non-Policy ¶ 4(b) evidence from which the Panel may independently conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii) regarding the <commcope.com> domain name.
First, Respondent registered and uses the <commcope.com> domain name to exploit the confusion it created between <commcope.com> and Complainant’s trademark. The confusingly similar domain name misdirects internet users away from Complainant’s legitimate website to a holding template. Thereby, internet users are given a false impression of Complainant’s internet presence. Respondent’s misdirection is disruptive to Complainant’s business and using the at-issue domain name in this manner indicates bad faith under Policy ¶ 4(b)(iii). See Love City Brewing Company v. Anker Fog / Love City Brewing Company, FA 1753144 (Forum Nov. 27, 2017) (Finding that Respondent disrupts Complainant’s business by pointing Internet users to an expired webpage. This may create the perception that Complainant is closed, never existed, or is not a legitimate business. Therefore, the Panel finds that Respondent registered and uses the disputed domain names in bad faith per Policy ¶ 4(b)(iii).).
Next as mentioned above regarding rights and legitimate interests, Respondent holds the <commcope.com> domain name inactively. Doing so indicates bad faith under Policy ¶ 4(a)(iii). See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”)
Moreover, Respondent engages in typosquatting. In typosquatting, a respondent deliberately introduces typographical errors or misspellings into a trademark, or into a URL, and then uses the resulting string in a domain name hoping that internet users will either: 1) inadvertently type the malformed string when seeking products, services or information related to the domain name’s target trademark, URL, or official domain name; and/or 2) in viewing the domain name will mistakenly believe it is officially related to the domain name’s confusingly similar target. Here, in creating the at-issue <commcope.com> domain name Respondent drops the “s” in Complainant’s COMMSCOPE trademark and embeds the malformed trademark in the at-issue domain name. Typosquatting, in itself, indicates bad faith under Policy ¶ 4(a)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii).”).
Finally, Respondent had actual knowledge of Complainant’s rights in the COMMSCOPE mark when it registered its <commcope.com> domain name. Respondent’s actual knowledge is, without limitation, evident from the notoriety of Complainant’s trademark and from the fact that Respondent’s <commcope.com> domain name contains an overt misspelling of Complainant’s COMMSCOPE mark that is explained only by Respondent’s bad faith exploitation of Complainant’s trademark. Registering and using a confusingly similar domain name with knowledge of a complainant’s rights in such domain name indicates bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, 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 domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <commcope.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: April 25, 2019
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