CommScope, Inc. of North Carolina v. Michael Cross / Commscope
Claim Number: FA1910001867205
Complainant is CommScope, Inc. of North Carolina (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is Michael Cross / Commscope (“Respondent”), South Carolina, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is<commscopegroup.com>, registered with GoDaddy.com, 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 October 17, 2019; the Forum received payment on October 17, 2019.
On October 18, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <commscopegroup.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 October 21, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 12, 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@commscopegroup.com. Also on October 21, 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 November 14, 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 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 <commscopegroup.com> domain name is confusingly similar to Complainant’s mark as Respondent merely adds the generic term “group” and the “.com” generic top-level domain (“gTLD”).
Respondents has no rights or legitimate interests in the <commscopegroup.com> domain name as Respondent is not commonly known by such domain name nor has Respondent been licensed, authorized, or otherwise permitted by Complainant to use Complainant’s mark. Furthermore, Respondent’s use of the domain name is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use, as Respondent is using the disputed domain name to phish for personal or financial information via email. Furthermore, Respondent sets the domain name to direct traffic to Complainant’s company website.
Respondent registered and used the <commscopegroup.com> domain name in bad faith, as Respondent is disrupting Complainant’s business with its phishing scheme and otherwise. Respondent also registered the disputed domain name with false contact information. Additionally, Respondent has actual or constructive knowledge of Complainant’s rights in the COMMSCOPE mark at the time of registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has 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 uses the <commscopegroup.com> domain name to address email in furtherance of a phishing scheme and redirecting the domain name to Complainant’s official website.
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 USPTO trademark registration for COMMSCOPE shows Complainant’s rights in a mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <commscopegroup.com> domain name contains Complainant’s entire COMMSCOPE trademark followed by the term “group” with the top-level domain name “.com” appended thereto. The differences between Complainant’s trademark and the <commscopegroup.com> domain name fail to distinguish the domain name from Complainant’s mark for the purpose of Policy ¶ 4(a)(i). In fact, the inclusion of the term “group” in the domain name is suggestive of Respondent’s business. Therefore, incorporating the term “group” into the at-issue domain name only adds to any confusion resulting from the use of Complainant’s COMMSCOPE trademark in the <commscopegroup.com> domain name. The Panel thus concludes that Respondent’s <commscopegroup.com> domain name is confusingly similar to Complainant’s COMMSCOPE trademark. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
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.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Michael Cross / Commscope” and the record before the Panel contains no evidence conclusively showing that Respondent is commonly known by the <commscopegroup.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <commscopegroup.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding that, although the respondent listed itself as “Jessie McKoy / Ripple Reserve Fund” in the WHOIS contact information, it did not provide any affirmative evidence to support this identity; combined with the fact that the complainant claimed it did not authorize the respondent to use the mark, the respondent is not commonly known by the domain name).
Additionally, Respondent uses its <commscopegroup.com> domain name to redirect traffic to Complainant’s own <commscope.com> website. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4 (c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Direct Line Ins. plc v. Low-cost-domain, FA 1337658 (Forum Sept. 8, 2010) (“The Panel finds that using Complainant’s mark in a domain name over which Complainant has no control, even if the domain name redirects to Complainant’s actual site, is not consistent with the requirements of Policy ¶ 4(c)(i) or ¶ 4(c)(iii) . . .”).
Further, Respondent uses the at-issue domain name as an email address in support of a phishing scheme designed to trick third parties into falsely believing they are communicating with Complainant when they are not. Email sent by Respondent attempts to elicit a third party quote to give a quote for products ostensibly sought by Complainant. The email impersonates the CIO of Complainant and endeavors to have the recipient disclose personal and financial information to Respondent. Likewise, this use of the <commscopegroup.com> domain name is neither a bona fide offering of goods or services under Policy ¶ 4 (c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the respondent’s use of the disputed domain names to send fraudulent emails purportedly from agents of complainant to be 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 also Cubist Pharmaceuticals, Inc. v. Gregory Stea, FA1403001550388 (Forum May 5, 2014) (“Respondent is using the domain name in emails to various IT hardware suppliers in an attempt to impersonate Complainant and defraud its customers. The domain name also resolved to a website similar to Complainant's website. The Panel found that such actions precluded a bona fide offer or fair use.”).
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 under Policy ¶4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below 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). The Panel’s grounds for finding bad faith herein are presented without limitation.
As mentioned above regarding rights and interests, Respondent registered and is using its <commscopegroup.com> domain name to facilitate a phishing scheme based on Respondent sending forged emails originating from the <commscopegroup.com> domain name to third parties. Respondent’s use of the at-issue domain name in this manner disrupts Complainant’s business and indicates bad faith registration and use per Policy ¶ 4(b)(iii). Since Respondent is ultimately using the domain name to trade on the goodwill resident in Complainant’s COMMSCOPE mark, the relevant circumstances also demonstrate Respondent’s bad faith under Policy ¶ 4(b)(iv). See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (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).”); see also, Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use).
Finally, Respondent had actual knowledge of Complainant’s rights in the COMMSCOPE mark when Respondent registered the <commscopegroup.com> domain name. Respondent’s actual knowledge is evident from Respondent’s use of the domain name to direct internet traffic to Complainant’s own website as well as from Respondent’s sending phony email from the <commscopegroup.com> domain name employing the name of Complainant’s CIO and pretending to be official email from Complainant. 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 <commscopegroup.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: November 14, 2019
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