DECISION

 

CommScope, Inc. of North Carolina v. Tom Dicato

Claim Number: FA2406002102691

PARTIES

Complainant is CommScope, Inc. of North Carolina ("Complainant"), represented by William Schultz of Merchant & Gould, Minnesota, USA. Respondent is Tom Dicato ("Respondent"), Louisiana, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <conmnscope.com>, registered with NameCheap, Inc..

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on June 18, 2024; Forum received payment on June 18, 2024.

 

On June 18, 2024, NameCheap, Inc. confirmed by e-mail to Forum that the <conmnscope.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 June 20, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 10, 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@conmnscope.com. Also on June 20, 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 July 11, 2024, 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.

 

RELIEF SOUGHT

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

 

PARTIES' CONTENTIONS

A. Complainant

Complainant states that it provides communication products and services. With roots dating back to 1937, Complainant has played a role in virtually all of the world's best communication networks. It creates the infrastructure that connects people and technologies, including wired and wireless networks. Complainant was instrumental in creating cable TV infrastructure, the first wireless networks, the first data centers, and the first intelligent buildings. Today, Complainant offers a wide range of services under the COMMSCOPE mark, including, broadband solutions, enterprise solutions, and wireless solutions. Complainant has also used the COMMSCOPE mark in connection with a wide range of products, including antennas, cables, connectors, and networking systems, among others. Complainant has rights in the COMMSCOPE mark through its registration in the United States in 1994. The mark is well known.

 

Complainant alleges that the disputed domain name is identical or confusingly similar to its COMMSCOPE mark as it consists of a misspelling of the mark ("MM" is replaced by the visually similar "NMN"), together with the ".com" generic top-level domain ("gTLD").

 

According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its COMMSCOPE mark in any way. Respondent does not use the disputed domain name for a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, the resolving website displays pay-per-click advertising hyperlinks to products and services that compete with those of Complainant.

 

Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith as the resolving website displays competing hyperlinks. Respondent registered the disputed domain name with actual knowledge of Complainant's rights in the COMMSCOPE mark. Respondent engaged in typosquatting.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant owns the mark COMMSCOPE and uses it to market communication products and services.

 

Complainant's rights in its mark date back to at least 1994.

 

The disputed domain name was registered in 2024.

 

Complainant has not licensed or otherwise authorized Respondent to use its mark.

 

The resolving website displays pay-per-click advertising hyperlinks to products and services that are not related to Complainant.

 

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 disputed domain consists of a misspelling of Complainant's COMMSCOPE mark ("MM" is replaced by the visually similar "NMN"), together with the ".com" generic top-level domain ("gTLD"). The addition of a gTLD to a misspelled version of a mark may not sufficiently distinguish a disputed domain name from a mark. Further, the combination of the letters "NMN" is visually similar to the letters "MM", and this justifies a finding of confusing similarity under the Policy. See CDW LLC v. Netzer, FA1804001782406 (Forum May 15, 2018) (finding the domain name <cdvv.biz> confusingly similar to complainant's CDW mark due, in part, to the fact that the double "v" was designed to mimic the letter "w"); Emerson Electric Co. v. Golden Humble, FA1805001787128 (Forum June 11, 2018) (finding the domain name <ernmersson.com> confusingly similar to complainant's EMERSON mark due, in part, to the fact that the respondent replaced the letter "m" with the visually similar combination of the letters "r" and "n"); The Burton Firm, P.A. v. Dre, FA1803001779192 (Forum April 25, 2018) (finding the domain name <theburtonfirrn.com> confusingly similar to the complainant's THE BURTON FIRM mark due, in part, to the fact that respondent replaced the letter "m" with the visually similar combination of the letters "r" and "n"). Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant's mark per Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant has not licensed or otherwise authorized Respondent to use its COMMSCOPE mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name. See Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists "Dale Anderson" as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here, the WHOIS information of record identifies the registrant as "Tom Dicato". Thus the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).

 

Complainant alleges that the resolving website displays pay-per-click advertising hyperlinks to competing products and services. The Panel finds that the evidence in the Complaint is not sufficient to support that allegation. However, the evidence in the Complaint does show that the resolving website displays pay-per-click advertising hyperlinks not related to Complainant. Use of a domain name to redirect users to unrelated third-party sites (whether or not they compete with Complainant) is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Trulia, Inc. v. Armen A, FA1586491 (Forum Dec. 2, 2014) (finding that a parked page containing pay-per-click advertising links that resolve to the websites of Complainant's competitors did "not constitute a Policy ¶ 4(c)(i) bona fide offering of goods or services, or a Policy ¶ 4(c)(iii) legitimate noncommercial fair use"); see also Constellation Wines U.S., Inc. v. Tex. Int'l Prop. Assocs., FA 948436 (Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant); see also Coachella Music Festival, LLC v. josh greenly / All Access Tickets, FA1507001629217 (Forum August 10, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name as required under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), where the respondent was using the disputed domain name to host a web page that featured links to services that competed with those of the complainant). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶ 4(c)(i) and 4(c)(iii)). And the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

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 name.

 

Indeed, as already noted, the resolving website displays pay-per-click advertising hyperlinks to products and services not related to Complainant. Bad faith has been found even where a respondent has commercially benefited through links unrelated to a complainant's mark. See Bank of Am. Fork v. Shen, FA 699645 (Forum June 11, 2006) (holding that the respondent's previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); see also PopSockets LLC v. san mao, FA 1740903 (Forum Aug. 27, 2017) (finding disruption of a complainant's business which was not directly commercial competitive behavior was nonetheless sufficient to establish bad faith registration and use per Policy ¶ 4(b)(iii)); see also Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant's business, through which the respondent presumably commercially gained). Thus, the Panel finds bad faith registration and use under Policy ¶¶ 4(b)(iii) and/or (iv).

 

Further, by merely replacing "MM" in Complainant's mark with "NMN", Respondent engages in typosquatting. A finding of typosquatting can evince bad faith under Policy ¶ 4(a)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) ("Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii)."). As such, the Panel finds bad faith typosquatting 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 <conmnscope.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist

Dated: July 11, 2024