Mediacom Communications Corporation v. Zhi Chao Yang
Claim Number: FA2303002037276
Complainant is Mediacom Communications Corporation (“Complainant”), represented by Robert M. Wasnofski, Jr. of Dentons US LLP, Illinois, USA. Respondent is Zhi Chao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <mediacmotoday.com>, <mediacomtodayy.com>, <mediacomtoady.com>, <mediacomtodya.com>, <mwdiacomtoday.com>, and <mediaocmtoday.com>, registered with Cloud Yuqu 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on March 24, 2023; Forum received payment on March 24, 2023.
On March 27, 2023, Cloud Yuqu LLC confirmed by e-mail to Forum that the <mediacmotoday.com>, <mediacomtodayy.com>, <mediacomtoady.com>, <mediacomtodya.com>, <mwdiacomtoday.com>, and <mediaocmtoday.com> domain names are registered with Cloud Yuqu LLC and that Respondent is the current registrant of the names. Cloud Yuqu LLC has verified that Respondent is bound by the Cloud Yuqu 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 April 3, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint in both English and Chinese, setting a deadline of April 24, 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@mediacmotoday.com, postmaster@mediacomtodayy.com, postmaster@mediacomtoady.com, postmaster@mediacomtodya.com, postmaster@mwdiacomtoday.com, postmaster@mediaocmtoday.com. Also on April 3, 2023, the English and Chinese language 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 in both English and Chinese.
On May 2, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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 names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
Prior to discussing the three elements of the Policy, the Panel must decide on the language of the proceedings. The Registration Agreement is written in Chinese, thereby making the language of the proceedings Chinese.
Pursuant to UDRP Rule 11(a), the Panel has the authority to determine a different language for the proceedings, having regard to the circumstances of the case. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Pursuant to Rule 10(b), Respondent must be given a fair opportunity to present its case. Pursuant to Rule 10(c), the Panel may weigh the relative time and expense in enforcing the Chinese language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).
In the present case, Respondent has received the Notice of Complainant and Commencement Notification in both English and Chinese and has chosen not to respond to the Complaint; the resolving website is in English. Pursuant to Rule 11(a), having regard to the circumstances of the case, the Panel determines that fairness and justice to both parties, and due expedition, are best satisfied by conducting the remainder of the proceedings in English. See H-D U.S.A., LLC v. Yoshihiro Nakazawa, FA 1736477 (Forum July 21, 2017); see also UBS AG v. ratzel laura, FA 1735687 (Forum July 14, 2017).
A. Complainant
Complainant states that, since in or about 1995, it has used and/or registered the name and mark MEDIACOM in connection with a number of services, including, cable television transmission, high-speed Internet and telephone services. Complainant has also used the MEDIACOM mark with advertising services for many years. Complainant has rights in the MEDIACOM mark its registration in the United States in 2002.
Complainant alleges that the disputed domain names are identical or confusingly similar to its MEDIACOM mark as they all incorporate Complainant’s mark or a misspelling of the mark, merely adding the generic/descriptive term “today” or a misspelled version of that term, together with the “.com” generic top-level domain (“gTLD”). Respondent’s registration and use of the disputed domain names is an example of typosquatting of Complainant’s legitimate website <mediacomtoday.com>.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain names. Respondent is not licensed or authorized to use Complainant’s MEDIACOM mark and is not commonly known by the disputed domain names. Respondent does not use the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, the resolving web pages display pay-per-click hyperlinks for services related to Complainant.
Respondent registered and uses the disputed domain names in bad faith by offering to sell the disputed domain names for a price in excess of out-of-pocket costs. Respondent confuses and diverts users to a site with pay-per-click hyperlinks related to Complainant’s services. Respondent ignored Complainant’s cease-and-desist letters. Respondent registered the disputed domain names with actual knowledge of Complainant’s rights in the MEDIACOM mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark MEDIACOM dating back to at least 2002 and uses it to offer telecommunication and advertising services.
The disputed domain names were registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving websites display pay-per-click advertising hyperlinks to services related to those of Complainant. The disputed domain names are offered for sale for a price in excess of out-of-pocket costs. Complainant’s legitimate website is at <mediacomtoday.com>.
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 alleges that the disputed domain names are instances of typosquatting of its legitimate domain name <mediacomtoday.com>. However, typosquatting refers to misspelling a Complainant’s mark, not its domain name, see 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”). Thus the Panel will not further discuss the allegation of typosquatting; it will however refer to Complainant’s legitimate domain name below, under “Registration and Use in Bad Faith”.
The disputed domain names incorporate Complainant’s MEDIACOM mark or a misspelling of the mark, merely adding the generic/descriptive term “today” or a misspelled version of that term, together with the “.com” generic top-level domain (“gTLD”). Such changes are not sufficient to distinguish the domain names from the mark under Policy ¶ 4(a)(i). See Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“The [<morganstonley.com> and <morganstainley.com>] Domain Names are confusingly similar to Complainant’s marks, as they fully incorporate the MORGAN STANLEY mark, varying it only by subtle misspellings, omitting a space between the words, and adding the generic top-level domain (“gTLD”) ‘.com.’”); see also Milliman, Inc v. Domain Administrator, See PrivacyGuardian.org/Zhichao Yang, D2018-2178 (WIPO, Nov. 17, 2018) (finding that the addition of “benefis”, “bennefits”, “bnefits”, and “benefits” does not distinguish a disputed domain name from the complainant’s trademarks and ordering the transfer of <millimanbenefis.com>, <millimanbennefits.com>, <millimanbnefits.com>, and <millimannbenefits.com>); see also Blue Cross and Blue Shield Association v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶4(a)(i) analysis because domain name syntax requires TLDs.”). Therefore the Panel finds that the disputed domain names are confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its MEDIACOM mark. Respondent is not commonly known by the disputed domain names: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA 1408001574905 (Forum Sept. 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). Here, the WHOIS information for the disputed domain names list the registrant as “Zhi Chao Yang”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain names per Policy ¶ 4(c)(ii).
The resolving web pages display advertising hyperlinks to services related to Complainant. This is 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 Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”). Thus the Panel finds that Respondent fails to use the disputed domain names to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain names.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain names.
Indeed, as already noted, the resolving web pages display pay-per-click advertising hyperlinks. A respondent’s use of a confusingly similar domain name to divert Internet traffic to a site with hyperlinks, with which a respondent likely garners click-through fees, has been found to indicate a bad faith attempt to attract users for commercial gain. See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)). Thus the Panel finds bad faith registration and use pursuant to Policy ¶ 4(b)(iv).
Further, the disputed domain names are offered for sale for a price in excess of out-of-pocket costs. This may show bad faith registration and use under Policy ¶ 4(b)(i). See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA1506001625332 (Forum July 17, 2015) (“A respondent’s general offer to sell a disputed domain name for an excess of out-of-pocket costs is evidence of bad faith under Policy ¶ 4(b)(i).”). Thus the Panel finds bad faith registration and use under Policy ¶ 4(b)(i).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the disputed domain names are misspellings of Complainant’s legitimate domain name <mediacomtoday.com> and the resolving web pages refer to Complainant’s services. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); 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). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Finally, the Panel notes, obiter dictum, that Respondent appears to have been found to have registered and used numerous other domain names in bad faith.
Be that as it may, here Respondent displays a pattern of bad faith registration of disputed domain names containing Complainant’s MEDIACOM mark. Registration of multiple domain names containing a complainant’s mark can substantiate an argument that a respondent registered and uses a disputed domain name in bad faith per Policy ¶ 4(b)(ii). See NIKE, Inc., and Nike Innovate, C.V. v. Emile Boulanger, FA 1732458 (Forum July 3, 2017) (finding that registration of several infringing domain names in a case satisfies the burden imposed by the Policy ¶ 4(b)(ii)); see also Caterpillar Inc. v. Angie Arendt / DIAHOST .CO / keith mosley, FA1805001789701 (Forum July 2, 2018) (finding that Respondent engaged in a pattern of bad faith and registration by registering multiple domain names that contain Complainant’s famous CATERPILLAR mark); see also Radisson Hotels Internation, Inc. v. Yue Mei Wang / Wang Yue Mei aka Pei Jun Gan / Gan Pei Jun / Jun Yu He / He Jun Yu / Denliyan, FA1504001615349 (Forum June 1, 2015) (“The Panel agrees that Respondent’s registration of the <radissonbluplazachongqing.com>, <radissonbluchongqingshapingba.com>, <radissonplazahoteltianjin.com>, and <radissonbluhotelshanghai.com> domain names, which all infringe on Complainant’s mark, constitutes bad faith under Policy ¶ 4(b)(ii).”). Thus the Panel finds that Respondent registered and uses the disputed domain names in bad faith per Policy ¶ 4(b)(ii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mediacmotoday.com>, <mediacomtodayy.com>, <mediacomtoady.com>, <mediacomtodya.com>, <mwdiacomtoday.com>, and <mediaocmtoday.com> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: May 2, 2023
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