Mediacom Communications Corporation v. Host Master / Belcanto Investment Group Limited
Claim Number: FA2212002023336
Complainant is Mediacom Communications Corporation (“Complainant”), represented by Robert M. Wasnofski,Jr. of Dentons US LLP, Illinois, USA. Respondent is Host Master / Belcanto Investment Group Limited (“Respondent”), KN.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mailmediacombb.net>, (‘the Domain Name’) registered with Above.com Pty Ltd.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to Forum electronically on December 8, 2022; Forum received payment on December 8, 2022.
On Dec 18, 2022, Above.com Pty Ltd. confirmed by e-mail to Forum that the <mailmediacombb.net> Domain Name is registered with Above.com Pty Ltd. and that Respondent is the current registrant of the name. Above.com Pty Ltd. has verified that Respondent is bound by the Above.com Pty Ltd. 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 December 19, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 9, 2023 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@mailmediacombb.net. Also on December 19, 2022, 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, Forum transmitted to the parties a Notification of Respondent Default.
On January 12, 2023 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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
The Complainant is the owner of the mark MEDIACOM, registered, inter alia, in the USA for cable transmission services with first use recorded as 1995. It operates its web site at mediacomcc.com.
The Domain Name registered in 2022 is confusingly similar to the Complainant’s mark adding only the generic word ‘mail’ the letters ‘bb’ and the gTLD “.net” which do not prevent said confusing similarity.
The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The Domain Name has been used for pay per click links to third party commercial sites.
The Respondent’s use is not a bona fide offering of services or a legitimate noncommercial or fair use. The Domain Name has been registered and used in opportunistic bad faith to take advantage of the Complainant’s trade mark to confuse Internet users for commercial gain and to disrupt the Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark MEDIACOM, registered, inter alia, in the USA for cable transmission services with first use recorded as 1995. It operates its web site at mediacomcc.com.
The Domain Name registered in 2016 is pointed to pay per click links to commercial third party web sites.
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 Domain Name in this Complaint combines the Complainant’s MEDIACOM mark (registered, inter alia, in the USA for cable services with first use recorded as 1995) with the generic word ‘mail’, the letters ‘bb’ and the gTLD “.net”.
The addition of the generic word ‘mail’ does not prevent confusing similarity between the Domain Name and the Complainant’s mark which is still recognizable in the mark. See Abbott Laboratories v Miles White, FA 1646590 (Forum Dec 10, 2015) (holding that the addition of a generic term does not adequately distinguish a disputed domain name from complainant’s mark under Policy 4 (a) (i).)
Additional letters and a gTLD do not prevent confusing similarity between the Domain Name and the Complainant’s mark per Policy 4(a)(i). See ModCloth, Inc. v. James McAvoy, FA 1629102 (Forum Aug. 16, 2015) (“The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark because it differs from Complainant’s mark by merely adding the letter ‘L’ . . . ”) See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark). As such the addition of the letters ‘bb’ and the gTLD .net does not prevent confusing similarity between the Domain Name and the Complainant’s mark.
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. There is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The use of the Domain Name is commercial so cannot be legitimate noncommercial fair use.
The Respondent has used the site attached to the Domain Name to link to third party businesses. It does not make it clear that there is no commercial connection with the Complainant. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. See Ashley Furniture Industries Inc v domain admin /private registrations aitken Gesellschaft, FA 1506001626253 (Forum July 29, 2015) (linking to pay per click links does not amount to a bona fide offering of goods and services or a legitimate noncommercial fair use).
The Respondent has not provided any response or provided any explanation to counter the prima facie case evidenced by the Complainant as set out herein.
As such the Panelist finds that the Respondent does not have rights or legitimate interests in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The use made of the Domain Name in relation to the site for pay per click links is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant especially as the description on the links appears to suggest an connection with the Complainant with a reference to logging in before taking the user to completely unconnected sites.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the web site or services offered on it likely to disrupt the business of the Complainant. See Health Republic Insurance Company v Above.comLegal, FA 1506001622088, (Forum July 10, 2015) re diversion to pay per click links.
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mailmediacombb.net> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: January 13, 2023
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