DECISION

 

Mediacom Communications Corporation v. VMI INC

Claim Number: FA2310002066460

PARTIES

Complainant is Mediacom Communications Corporation ("Complainant"), represented by Robert M. Wasnofski, Jr. of Dentons US LLP, Illinois, USA. Respondent is VMI INC ("Respondent"), Cayman Islands.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <mediamcomtoday.com>, registered with GoDaddy.com, LLC.

 

PANEL

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.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on October 16, 2023; Forum received payment on October 16, 2023.

 

On October 17, 2023, GoDaddy.com, LLC confirmed by e-mail to Forum that the <mediamcomtoday.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 19, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 8, 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@mediamcomtoday.com. Also on October 19, 2023, 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 November 9, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant contends as follows:

 

Complainant is one of America's largest cable television companies.

 

Complainant asserts rights in the MEDIACOM mark based upon registration with the United States Patent and Trademark Office ("USPTO").

 

The <mediamcomtoday.com> domain name is virtually identical and confusingly similar to Complainant's trademark. The at-issue domain contains Complainant's trademark with an extra "m" inserted, and with the term "today" added. The domain name concludes with the ".com" top-level domain name. The domain name is a misspelling of one of Complainant's prior official domain names.

 

Respondent does not have rights or legitimate interests in the <mediamcomtoday.com> domain name. Respondent is not licensed or authorized to use the MEDIACOM mark and is not commonly known by the at-issue domain name. Additionally, Respondent does not use the domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the at-issue domain name directs internet uses to a website containing pay-per-click hyperlinks and to offer the domain name for-sale.

 

Respondent registered and uses the <mediamcomtoday.com> domain name in bad faith. Respondent registered the at-issue domain name with actual knowledge of Complainant's rights in the MEDIACOM mark. Respondent's domain name directs users to a website containing pay-per-click links. Respondent engages in typosquatting and offers the domain name for sale at an undisclosed price. Respondent is disrupting Complainant's business.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has trademark rights in the MEDIACOM 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 MEDIACOM trademark.

 

Respondent uses the at-issue domain name to address a webpage hosting pay-per-click links.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.

 

Complainant's registration of the MEDIACOM mark with the USPTO sufficiently demonstrates 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 <mediamcomtoday.com> domain name contains a recognizable misspelling of Complainant's MEDIACOM trademark where an additional "m" is inserted, followed by the term "today", with all followed by the ".com" top-level domain name. Respondent's additions to Complainant's trademark in forming the at-issue domain name fail to distinguish the domain name from Complainant's MEDIACOM trademark. Therefore, the Panel concludes that Respondent's <mediamcomtoday.com> domain name is confusingly similar to Complainant's MEDIACOM trademark pursuant to Policy ¶ 4(a)(i). 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.).

 

Rights or Legitimate Interests

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, absent evidence of Policy ¶ 4(c) circumstances 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. 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 <mediamcomtoday.com> indicates that "VMI Inc" is the domain name's registrant and there is no evidence in the record indicating that Respondent is commonly known by <mediamcomtoday.com>. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name under Policy ¶ 4(c)(iii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).

 

Respondent uses the at-issue domain name to address a webpage offering pay-per-click links. Respondent's use of the <mediamcomtoday.com> domain name is thus not indicative of a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor of a non-commercial 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.").

 

Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and demonstrates Respondent's lack of rights and lack of legitimate interests in respect of the at-issue domain name.

 

Registration and Use in Bad Faith

As discussed below without being exhaustive, there is evidence from which the Panel concludes that Respondent acted in bad faith pursuant to the Policy.

 

As mentioned above regarding rights and legitimate interests, Respondent is using its confusingly similar <mediamcomtoday.com> domain name to address a webpage displaying pay-per-click links. Using the domain name in such manner is disruptive to Complainant's business, takes unfair advantage of the confusion between the at-issue domain name and Complainant's trademark, and indicates Respondent's bad faith pursuant to Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv). See Vivint, Inc. v. Online Management, FA1403001549084 (Forum Apr. 23, 2014) (holding that the respondent had registered and used the disputed domain name in bad faith according to Policy ¶ 4(b)(iv) where the disputed domain name resolved to a parking page that featured no content besides sponsored advertisements and links).

 

Respondent is engaging in typosquatting. Respondent's domain name is identical to a prior genuine website of Complainant but for an extraneous letter "m" added to the domain name. Typosquatting, in itself, indicates bad faith registration and use of a domain name. See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).

 

Moreover, Respondent had actual knowledge of Complainant's rights in the MEDIACOM mark when Respondent registered <mediamcomtoday.com>. Respondent's actual knowledge is apparent from the mark's notoriety and long term use, as well as from the congruence, but for a single superfluous letter, between the domain name and a prior genuine domain name of Complainant. 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).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <mediamcomtoday.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

 

Paul M. DeCicco, Panelist

Dated: November 9, 2023