Mediacom Communications Corporation v. THIS DOMAIN MAY BE FOR SALE AT HTTPS://WWW.NETWORKSOLUTIONS.COM / New Ventures Services, Corp
Claim Number: FA1909001863343
Complainant is Mediacom Communications Corporation (“Complainant”), represented by Robert M. Wasnofski,Jr. of Dentons US LLP, Illinois, USA. Respondent is THIS DOMAIN MAY BE FOR SALE AT HTTPS://WWW.NETWORKSOLUTIONS.COM / New Ventures Services, Corp (“Respondent”), Pennsylvania, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cloudmediacom.com>, registered with Network Solutions, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 20, 2019; the Forum received payment on September 20, 2019.
On September 23, 2019, Network Solutions, LLC confirmed by e-mail to the Forum that the <cloudmediacom.com> domain name is registered with Network Solutions, LLC and that Respondent is the current registrant of the name. Network Solutions, LLC has verified that Respondent is bound by the Network Solutions, 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 September 24, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 15, 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@cloudmediacom.com. Also on September 24, 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 October 16, 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 is one of America’s largest cable television companies.
Complainant has rights in the MEDIACOM mark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <cloudmediacom.com> domain name is confusingly similar to Complainant’s MEDIACOM mark as it incorporates the mark in its entirety, merely adding the descriptive term “cloud” and a “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <cloudmediacom.com> domain name. Respondent is not authorized to use Complainant’s MEDIACOM mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name’s resolving website to display a set of pay-per-click hyperlinks, many of them to other telecommunication providers.
Respondent registered and uses the <cloudmediacom.com> domain name in bad faith. Respondent attempts to disrupt Complainant’s business and attract, for commercial gain, users to the disputed domain name where it features competing pay-per-click links. Respondent also failed to respond to Complainant’s cease and desist letters. Finally, Respondent had actual and constructive knowledge of Complainant’s rights in the MEDIACOM mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the MEDIACOM mark through its registration of such mark with the USPTO.
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 names after Complainant acquired rights in its MEDIACOM trademark.
Respondent uses the at-issue domain name to address a website offering third party pay-per-click links including links to Complainant’s competition.
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 is confusingly similar to a trademark in which Complainant has rights.
Complainant shows that it has a USPTO registration for its MEDIACOM trademark. Such registration is sufficient to demonstrate Complainant’s rights in the MEDIACOM mark under Policy ¶ 4(a)(i). See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark).
Respondent’s <cloudmediacom.com> domain name contains Complainant’s MEDIACOM trademark preceded by the generic term “cloud” all followed by the top-level domain name “.com.” The differences between Respondent’s domain name and Complainant’s trademark are insufficient to distinguish the at-issue domain name from the MEDIACOM trademark for the purposes of Policy ¶ 4(a)(i). In fact, the domain name’s included term “cloud” suggests Complainant’s internet related business and thus only adds to any confusion between the domain name and Complainant’s trademark. Therefore, the Panel concludes that Respondent’s <cloudmediacom.com> domain name is confusingly similar to Complainant’s MEDIACOM trademark. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)).
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 <cloudmediacom.com> 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.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “THIS DOMAIN MAY BE FOR SALE AT HTTPS://WWW.NETWORKSOLUTIONS.COM / New Ventures Services, Corp.” The record before the Panel contains no evidence that otherwise tends to show that Respondent is commonly known by the <cloudmediacom.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).
Furthermore, the record before the Panel shows that Respondent’s <cloudmediacom.com> domain name addresses a webpage containing links to third-parties including links to Complainant’s competition. Respondent’s use of the at-issue domain name in this manner constitutes neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a non-commercial or fair use under Policy ¶ 4(c)(iii).) See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
The at-issue domain name was registered and was being 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).
As mentioned above regarding rights or legitimate interests, Respondent uses the <cloudmediacom.com> domain name to offer pay-per-click links, including links to Complainant’s competition, to third-parties. Respondent’s use of the domain name is thus disruptive to Complainant’s business and demonstrates bad faith registration and use of the domain name under Policy ¶¶ 4(b)(iii) & (iv). See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”); see also Staples, Inc. and Staples the Office Superstores, LLC v. HANNA EL HIN / DTAPLES.COM, FA1404001557007 (Forum June 6, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <dtaples.com> domain name in bad faith under Policy ¶ 4(b)(iv) because the Respondent is using the disputed domain name to host third-party links to Complainant’s competitors from which Respondent is presumed to obtain some commercial benefit.”).
Moreover, Respondent had actual knowledge of Complainant’s rights in the MEDIACOM mark when it registered <cloudmediacom.com> as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s trademark and Respondent’s use of hyperlinks to direct <cloudmediacom.com> website visitors to Complainant’s competition, as well as from Respondent’s incorporation of a term suggesting Complainant’s business area into the confusingly similar at-issue domain name. Registering and using a confusingly similar domain name with knowledge of Complainant’s rights in such domain name shows 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); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION 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 <cloudmediacom.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: October 16, 2019
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