Mediacom Communications Corporation v. DOMAIN MAY BE FOR SALE, CHECK AFTERNIC.COM Domain Admin / Whois Foundation / Domain Admin / Domain Privacy Guard Sociedad Anonima Ltd
Claim Number: FA2009001913334
Complainant is Mediacom Communications Corporation (“Complainant”), represented by Robert M. Wasnofski, Jr. of Dentons US LLP, Illinois, USA. Respondent is DOMAIN MAY BE FOR SALE, CHECK AFTERNIC.COM Domain Admin / Whois Foundation / Domain Admin / Domain Privacy Guard Sociedad Anonima Ltd (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <mediacombuisness.com> and <mediacomspeedtest.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 22, 2020; the Forum received payment on September 22, 2020.
On September 24, 2020, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <mediacombuisness.com> and <mediacomspeedtest.com> domain names are registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the names. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 30, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 20, 2020 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@mediacombuisness.com, postmaster@mediacomspeedtest.com. Also on September 30, 2020, 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 26, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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
As one of America’s largest cable television companies, Complainant has used its registered trademark MEDIACOM to identify and distinguish its services for over 20 years. Respondent’s <mediacombuisness.com> and <mediacomspeedtest.com> domain names are identical or confusingly similar to Complainant’s MEDIACOM mark.
Respondent lacks rights or legitimate interests in the <mediacombuisness.com> and <mediacomspeedtest.com> domain names. Respondent is not commonly known by the disputed domain names nor has Complainant authorized Respondent to use Complainant’s mark. Respondent fails to use the disputed domain names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as the disputed domain names resolve to websites containing pay-per-click links to third-party Internet services and links to SEDO.com, which offers the disputed domain names for sale. Furthermore, the <mediacombuisness.com> domain name attempts to confuse consumers into believing that Respondent’s website is affiliated with Complainant as the disputed domain name incorporates Complainant’s entire mark combined with the misspelled descriptive term that Complainant uses for its own official website at “www.mediacombusiness.com”.
Respondent registered and uses the <mediacombuisness.com> and <mediacomspeedtest.com> domain names in bad faith. The disputed domain names disrupt Complainant’s business by diverting consumers to websites containing pay per-click links and are intended to deceive the public into believing that the corresponding websites are associated with Complainant. Additionally, Respondent attempted to conceal his identity using a privacy proxy. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the MEDIACOM mark based on Complainant’s widespread use and registration of the MEDIACOM mark and the fact that the pay-per-click links on each resolving website feature categories of services that Complainant offers or would be expected to offer.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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”).
Complainant has shown that it has rights in the MEDIACOM mark through its registration of the mark with the United States Patent and Trademark Office, Reg. No. 2,544,829, registered March 5, 2002. Respondent’s <mediacombuisness.com> and <mediacomspeedtest.com> domain names are identical or confusingly similar to Complainant’s MEDIACOM mark as they contain the entire MEDIACOM mark. The <mediacombuisness.com> domain name adds the term “buisness,” a misspelling of the descriptive term “business,” which is similar to Complainant’s <mediacombusiness.com> domain name. The <mediacomspeedtest.com> domain name adds the term “speedtest”, which is insufficient to distinguish the domain name from Complainant’s mark. In each case the inconsequential gTLD “.com” may be disregarded.
Complainant has established this element.
(i) before any notice to the Respondent of the dispute, the use by the Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the Respondent has acquired no trademark or service mark rights; or
(iii) the Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The Panel finds that the MEDIACOM mark is distinctive and widely known. The <mediacombuisness.com> and <mediacomspeedtest.com> domain names were registered on December 23, 2016 and March 24, 2017 respectively. They both resolve to websites containing pay-per-click links to third-party Internet services that compete with Complainant and to SEDO.com, which offers the disputed domain names for sale. These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the disputed domain names on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the disputed domain names. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
In the circumstances of this case, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain names.
Complainant has established this element.
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
Here both disputed domain names were registered long after Complainant had established a reputation in its MEDIACOM mark and resolve to websites offering pay-per-click links to services competing with Complainant. Further, the misspelling “buisness” is aimed at misdirecting Internet users intending to reach Complainant’s “www.mediaconbusiness.com” website and the word “speedtest” describes a service which Internet users would expect from Complainant. Accordingly, the Panel finds that both disputed domain names were registered with Complainant’s mark in mind and they are being used by Respondent in the circumstances set out in the Policy, paragraph 4(b)(iv). Hence both domain names were registered and are being used in bad faith.
Complainant has established this element.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mediacombuisness.com> and <mediacomspeedtest.com> domain names be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: October 31, 2020
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