Mediacom Communications Corporation v. qiang wang
Claim Number: FA2105001944231
Complainant is Mediacom Communications Corporation (“Complainant”), represented by Robert M. Wasnofski, Jr. of Dentons US LLP, Illinois, USA. Respondent is qiang wang (“Respondent”), International.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <mediacomcanle.com> and <mediacomtoda.com>, registered with Sav.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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 7, 2021; the Forum received payment on May 7, 2021.
On May 7, 2021, Sav.com, LLC confirmed by e-mail to the Forum that the <mediacomcanle.com> and <mediacomtoda.com> domain names are registered with Sav.com, LLC and that Respondent is the current registrant of the names. Sav.com, LLC has verified that Respondent is bound by the Sav.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 May 17, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 7, 2021, 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@mediacomcanle.com, postmaster@mediacomtoda.com. Also on May 17, 2021, 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 June 10, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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
Complainant is one of America’s largest cable television companies. Complainant has rights in the MEDIACOM mark through Complainant’s registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,544,829, registered March 5, 2002). Respondent’s <mediacomcanle.com> and <mediacomtoda.com> domain names are confusingly similar to Complainant’s MEDIACOM mark as they contain the entire MEDIACOM mark, and differ from Complainant’s official <mediacomcable.com> and <mediacomtoday.com> domain names by a single letter.
Respondent lacks rights or legitimate interests in the <mediacomcanle.com> and <mediacomtoda.com> domain names. Respondent is not commonly known by the disputed domain names, nor has Complainant authorized Respondent to use the MEDIACOM mark. Additionally, 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 sites promoting internet services and fake account management sites.
Respondent registered and uses the <mediacomcanle.com> and <mediacomtoda.com> domain names in bad faith. Respondent’s disputed domain names resolve to websites containing pay-per-click links. Respondent also engaged in typosquatting and failed to respond to Complainant’s cease and desist communications. Finally, Respondent registered the disputed domain names with actual knowledge of Complainant’s rights in the MEDIACOM mark based on Respondent’s use of Complainant’s widely-used and registered mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, based upon the uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <mediacomcanle.com> and <mediacomtoda.com> domain names.
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”).
Respondent asserts rights in the MEDIACOM mark through its registration of the mark with the USPTO (e.g. Reg. No. 2,544,829, registered March 5, 2002). Registration of a mark with the USPTO is sufficient to demonstrate rights in the mark per Policy ¶ 4(a)(i). See Nintendo of America Inc. v. lin amy, FA 1818485 (Forum Dec. 24, 2018) ("Complainant’s ownership a USPTO trademark registration for the NINTENDO mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i).”). The Panel finds that Complainant has demonstrated rights in the MEDIACOM mark per Policy ¶ 4(a)(i).
Complainant argues Respondent’s <mediacomcanle.com> and <mediacomtoda.com> are confusingly similar to Complainant’s MEDIACOM mark as they contain the entire MEDIACOM mark, and differ from Complainant’s official <mediacomcable.com> and <mediacomtoday.com> domain names by a single letter. The addition of a generic or descriptive term, misspellings, and a generic top-level domain (“gTLD”) fail to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists 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 as 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 Acme Lift Company, L.L.C. v. VistaPrint Technologies Ltd, FA 1607039 (Forum Apr. 11, 2015) (stating, “Where a respondent has created a domain name in an effort to visually deceive Internet users via a simple misspelling (and when such misspellings are visually similar to the mark), a finding of confusing similarity under Policy ¶ 4(a)(i) is appropriate.”). The Panel finds that the disputed domain names are confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”). The Panel finds that Complainant has made a prima facie case.
Complainant contends Respondent lacks rights or legitimate interests in the <mediacomcanle.com> and <mediacomtoda.com> domain names as Respondent is not commonly known by the disputed domain names, nor has Complainant authorized Respondent to use Complainant’s mark. When a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain names lists the registrant as “qiang wang,” and Complainant argues there is no other evidence to suggest that Respondent was authorized to use the MEDIACOM mark. The Panel finds that Respondent is not commonly known by the disputed domain names per Policy ¶ 4(c)(ii).
Complainant argues that Respondent fails to use the <mediacomcanle.com> and <mediacomtoda.com> domain names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as both disputed domain names resolve to websites containing pay-per-click links to sites promoting internet services and fake account management sites. Where a respondent uses the disputed domain name to host competitive pay-per-click hyperlinks, the Panel may find the respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See The Toronto-Dominion Bank v. GEORGE WASHERE, FA 1785311(Forum June 7, 2018) (“Respondent’s confusingly similar <esecuretdbank.com> domain name references a website displaying links to competing third parties as well as links to Complainant and various unrelated third parties. Using the domain name in this manner shows 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).”). Complainant provides screenshots of Respondent’s resolving websites, both of which feature competitive pay-per-click hyperlinks. The Panel finds that Respondent failed to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii) and Respondent has no rights or legitimate interests in respect of the domain names.
Complainant has proved this element.
Complainant contends Respondent registered and uses the <mediacomcanle.com> and <mediacomtoda.com> domain names in bad faith as the disputed domain names disrupt Complainant’s business by resolving to sites promoting internet services and fake account management sites. The use of competing hyperlinks can be evidence of bad faith registration and use per Policy ¶ 4(b)(iii). See block.one v. Negalize Interactive Things, FA 1798280 (Forum Aug. 21, 2018) (“Offering links to competing products or services can demonstrate bad faith under Policy ¶ 4(b)(iii) where a respondent registers a domain name that is confusingly similar to the mark of another.”). Complainant provides screenshots of the resolving websites from the disputed domain names that feature pay per-click links to sites promoting internet services and fake account management sites. This is evidence of bad faith per Policy ¶ 4(b)(iii).
Complainant contends Respondent engaged in typosquatting which is further evidence of bad faith registration and use. Per Policy ¶ 4(a)(iii), the purposeful introduction of misspelled terms in a domain name constitutes Typosquatting, which is itself evidence of bad faith. See Twitter, Inc. v. Domain Admin, FA1503001607451 (Forum Apr. 2, 2015) (“Typosquatting is a practice whereby a domain name registrant, such as Respondent, deliberately introduces typographical errors or misspellings into a trademark and then uses the string in a domain name. The conniving registrant wishes and hopes that Internet users will inadvertently type the malformed trademark when searching for the mark’s associated products or services. In doing so the wayward Internet users are directed to a web presence controlled by the domain name’s registrant where their accidental visits may be exploited. Here, Respondent simply changes a single letter in Complainant’s trademark before incorporating the mark into the at-issue domain name. Respondent’s typosquatting, in itself, is evidence of Policy ¶ 4(a)(iii) bad faith.”). Complainant argues that Respondent engaged in typosquatting as the disputed domain names differ from Complainant’s official <mediacomcable.com> and <mediacomtoday.com> domain names by a single letter – Respondent deliberately removed the “Y” in “today” and replaced the “B” with an “N” in “cable.” This is evidence of find bad faith per Policy ¶ 4(a)(iii).
Complainant also contends that Respondent registered and uses the disputed domain names in bad faith since Respondent failed to respond to Complainant’s cease and desist communications. Failing to respond to a complainant’s cease and desist letter can evidence bad faith registration and use per Policy ¶ 4(a)(iii). See Seiko Epson Corporation v. Ashish Sen, FA 1702054 (Forum Dec. 12, 2016) (finding that failing to respond to a cease-and-desist demand letter constitutes bad faith). Complainant provides screenshots of Complainant’s correspondence to Respondent, dated December 9, 2020, and January 27, 2021, and web form submission dated February 3, 2021, to which Respondent never responded. This is evidence of find bad faith per Policy ¶ 4(a)(iii).
Complainant argues Respondent registered the <mediacomcanle.com> and <mediacomtoda.com> domain names with actual knowledge of Complainant’s rights in the MEDIACOM mark based on Respondent’s use of Complainant’s widely-used and registered mark. A complainant’s widespread use of a mark and a respondent’s use of the mark can demonstrate actual knowledge of a complainant’s rights in a mark at registration and show bad faith per Policy ¶ 4(a)(iii). See United States Postal Service v. Yongkun Wang, FA 1788170 (Forum July 11, 2018) (finding Respondent had actual knowledge of Complainant’s rights in the USPS mark “given the widespread use of Complainant’s mark and the fact that Respondent registered four separate domain names all of which include Complainant’s USPS mark in its entirety”). Complainant argues that because of Complainant’s widespread use of the MEDIACOM mark, Respondent had actual knowledge of Complainant’s rights in the mark prior to registering the disputed domain names. The Panel agrees and finds that Respondent registered and uses the disputed domain names in bad faith per Policy ¶ 4(a)(iii).
Complainant has proved this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <mediacomcanle.com> and <mediacomtoda.com> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
June 18, 2021
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