DECISION

 

CommScope, Inc. of North Carolina v. Mariana Gomez / Conectar

Claim Number: FA2402002086282

 

PARTIES

Complainant is CommScope, Inc. of North Carolina ("Complainant"), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is Mariana Gomez / Conectar ("Respondent"), Columbia.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <commscope.com.co>, 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 February 29, 2024; Forum received payment on February 29, 2024.

 

On February 29, 2024, GoDaddy.com, LLC confirmed by e-mail to Forum that the <commscope.com.co> 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 March 5, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 25, 2024 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@commscope.com.co. Also on March 5, 2024, 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 March 27, 2024, 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, CommScope, Inc. of North Carolina, offers communication network services.

 

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

 

Respondent's <commscope.com.co> domain name is confusingly similar to Complainant's mark because it contains the COMMSCOPE mark in its entirety, merely adding the generic top-level domain name  ".com" and ".co" to form the domain name.

 

Respondent does not have rights or legitimate interests in the <commscope.com.co>domain name. Respondent is not licensed or authorized to use Complainant's COMMSCOPE 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, Respondent uses the at-issue domain name to advertise fiber cable and optical fiber cable, products Complainant offers for sale in connection with its COMMSCOPE marks.

 

Respondent registered and used the <commscope.com.co> domain name in bad faith. Respondent knew of Complainant's rights when Respondent registered the at-issue domain name. Respondent's diversion of traffic to Complainant's competitors also shows bad faith pursuant to Policy ¶ 4(b)(iii). Respondent was directly competing for website traffic with Complainant. Respondent used the website to divert traffic that should have reached Complainant. Respondent registered the domain name to trade on Complainant's goodwill associated with COMMSCOPE by creating a likelihood of confusion as to the source of the website and acted in bad faith pursuant to Policy 4(b)(iii).

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has trademark rights in the COMMSCOPE mark.

 

Respondent registered the at-issue domain name after Complainant acquired rights in COMMSCOPE.

 

Complainant's has not authorized Respondent to use Complainant's trademark.

 

Respondent uses the at-issue domain name to host links to Complainant's competition.

 

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 or identical to a trademark in which Complainant has rights.

 

Complainant's ownership of a USPTO registration for its COMMSCOPE trademark demonstrates Complainant's rights in a mark under Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) ("Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.").

 

Respondent's <commscope.com.co> domain name contains Complainant's COMMSCOPE trademark followed by the top-level domain names ".com." and ".co". The differences between Complainant's trademark and Respondent's domain name are insufficient to distinguish one from the other for the purposes of the Policy. Therefore, the Panel finds that Respondent's <commscope.com.co> domain name is confusingly similar to Complainant's COMMSCOPE trademark under Policy ¶ 4(a)(i). See MTD Products Inc v. Mike Kernea / Skyline, FA 1775278 (Forum Apr. 19, 2018) ("The mere addition of a gTLD is inconsequential and does not avoid a finding of identity.").

 

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.

 

The WHOIS information for <commscope.com.co> indicates that "Mariana Gomez Conectar" is the domain name's registrant and there is nothing in the record indicating that Respondent is known by <commscope.com.co>. 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's domain name addresses a webpage that displays advertising links relevant to Complainant's COMMSCOPE product offering. Using the confusingly similar domain name to display hyperlinks to third parties is 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 Vance Int'l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees).

 

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 that leads the Panel to find that Respondent acted in bad faith pursuant to the Policy.

 

First, Respondent used the at-issue domain name to direct internet users to links to Complainant's competitors. These links presumably benefit Respondent under a pay-per-click scheme or otherwise. Respondent's use of the domain name in this manner is disruptive to Complainant's business and capitalizes on the confusion that Respondent created between the domain name and Complainant's trademark. Respondent's use of <commscope.com.co> thereby shows Respondent's bad faith pursuant to Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv). See David Hall Rare Coins v. Tex. Int'l Prop. Assocs., FA 915206 (Forum Apr. 9, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) because respondent used the disputed domain name to advertise goods and services of complainant's competitors, thereby disrupting the complainant's business); see also, Plain Green, LLC v. wenqiang tang, FA 1621656 (Forum July 1, 2015) (finding that the respondent's use of the disputed domain name to feature generic third-party hyperlinks constituted bad faith according to Policy ¶ 4(b)(iv)); see also, Enterprise Rent-A-Car Company v. Kentech Company LTD, FA 406522 (Forum March 4, 2005) ("[T]he Panel infers that Respondent receives click- through fees for diverting Internet users to competing car rental services. Since Respondent is using a domain name that is confusingly similar to Complainant's mark, consumers searching for Complainant online who access Respondent's domain name may become confused as to Complainant's affiliation with the resulting website. Thus, the Panel finds that Respondent's commercial use of the <carenterprise.com> constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv).").

 

Moreover, Respondent registered its <commscope.com.co>domain name knowing that Complainant had trademark rights in COMMSCOPE. Respondent's prior knowledge is evident from the notoriety of Complainant's COMMSCOPE trademark and from Respondent's use of the domain name to display advertising links relating to Complainant's product line. Respondent's knowledge of Complainant's COMMSCOPE trademark prior to registering <commscope.com.co> further shows Respondent's bad faith under Policy ¶ 4(a)(iii). 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"); see also, AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) ("Complainant contends that Respondent's knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant's mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii).").

 

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 <commscope.com.co> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Paul M. DeCicco, Panelist

Dated: March 26, 2024