DECISION

 

CommScope, Inc. of North Carolina v. Nicola Mondeli

Claim Number: FA2502002140523

PARTIES

Complainant is CommScope, Inc. of North Carolina ("Complainant"), represented by William Schultz of Merchant & Gould, Minnesota, USA. Respondent is Nicola Mondeli ("Respondent"), Germany.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <comrnscope.cam>, registered with NameCheap, Inc.

 

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 17, 2025; Forum received payment on February 17, 2025.

 

On February 18, 2025, NameCheap, Inc. confirmed by e-mail to Forum that the <comrnscope.cam> 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 February 18, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 10, 2025 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@comrnscope.cam. Also on February 18, 2025, 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 11, 2025, 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 in part as follows:

Complainant engages in a business offering a variety of communications services and products.

 

Complainant asserts rights in the COMMSCOPE mark through its registration of the mark with the United States Patent and Trademark Office (USPTO).

 

Respondent's <comrnscope.cam> domain name is identical or confusingly similar to Complainant's COMMSCOPE mark. The domain name contains Complainant's entire COMMSCOPE mark (the "mrn" looks like "mm") and is confusingly similar to the COMMSCOPE mark pursuant to Policy ¶ 4(a)(i). The addition of a top-level domain to a mark is not a distinguishing feature.

 

Respondent has no rights or legitimate interests in the at-issue domain name. The domain name's resolving website is currently inactive and lacks any substantive content and Respondent's failure to use a domain name in connection with a bona fide offering of goods or services shows a lack of legitimate rights pursuant to Policy ¶ 4(c)(i). Respondent is not commonly known by the domain name and has not received Complainant's permission to use its trademark. Complainant has not licensed its COMMSCOPE mark to Respondent. Complainant has prior rights to the trade name and mark COMMSCOPE that date back to at least as early as 1969 and well prior to Respondent's registration of the domain name. Respondent is also not using the at-issue domain name for a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii) because it has placed no content on the site.

 

Respondent registered and uses the <comrnscope.cam> domain name in bad faith. Respondent's registration of <comrnscope.cam> was in bad faith pursuant to Policy ¶ 4(b)(ii) because at the time the name was registered, Respondent knew of CommScope's rights and engaged in a pattern of such registration to prevent Complainant from using the domain name. Respondent had actual knowledge of Complainant's trademark rights in its COMMSCOPE mark prior to the registration of the <comrnscope.cam> domain name. Respondent does not make active use of the <comrnscope.cam> and has not made use of that domain name since its registration. Respondent's non-use and failure to actively use the domain name shows bad faith. Respondent is engaging and typosquatting which also shows bad faith. While Respondent did not take the step to create a website, it did take the step to register the domain name that it knew was confusingly similar to Complainant's trademark. Respondent, as long as it maintains the domain name, has the ability to control the emails associated with the domain name and the DNS settings thus at any time Respondent may send out phishing emails or redirect consumers to other websites. Respondent has also connected the domain name to email servers

 

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 holds the at-issue domain name passively.

 

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 <comrnscope.cam> domain name contains an overt intentional misspelling of Complainant's COMMSCOPE trademark wherein the mark's second "m" is replace by a similarly appearing "r" and "n" (rn) i.e. a homoglyph, with all followed by the top-level domain name ".cam." 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 <comrnscope.cam> domain name is confusingly similar to Complainant's COMMSCOPE trademark under Policy ¶ 4(a)(i). See Acme Lift Company, L.L.C. v. VistaPrint Technologies Ltd, FA 1607039 (Forum Apr. 11, 2015) (stating, "Where a respondent has created a domain name in an effort to visually deceive Internet users via a simple misspelling (and when such misspellings are visually similar to the mark), a finding of confusing similarity under Policy ¶ 4(a)(i) is appropriate.")

 

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).

 

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 legitimate 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 the at-issue domain name indicates "Nicole Mondeli" as the domain name's registrant and there is no evidence before the Panel that otherwise indicates Respondent is commonly known by the <comrnscope.cam> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the disputed domain names because the WHOIS information listed "Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't" as the registrant and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute). 

 

Browsing to <comrnscope.cam> returns an empty page headed with "INDEX of/" and nothing more. Respondent's passive holding of the at-issue domain name shows 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 Dell Inc. v. link growth / Digital Marketing, FA 1785283 (Forum June 7, 2018) ("Respondent's domain names currently display template websites lacking any substantive content. The Panel finds that Respondent has does not have rights or legitimate interests with respect of the domain name per Policy ¶¶ 4(c)(i) or (iii).").

 

Given the forgoing, Respondent lacks rights and lacks legitimate interests in <comrnscope.cam>.

 

Registration and Use in Bad Faith

As discussed below without limitation, bad faith circumstances are present from which the Panel concludes that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).

 

As mentioned above, Respondent fails to make active use of the domain name as the domain name fails to address any substantive content. Respondent's passive holding of <comrnscope.cam> shows Respondent's bad faith registration and use of <comrnscope.cam> per Policy ¶ 4(a)(iii). See Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018) ("Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent uses the domain name to host an inactive website.").

 

Next, Respondent engages in typosquatting. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark and then uses the malformed string in a domain name hoping that internet users will accidently type such string when searching for products or services associated with the target trademark, or as intended in the instant case internet users will read the misspelled trademark laden domain name and confuse it with its target trademark. Although Complainant's COMMSCOPE trademark is misspelled in the at-issue domain name by substituting an "m" with "rn" Complainant's trademark is nevertheless apparent when reading the domain name. Respondent's intentional misspelling of COMMSCOPE within Respondent's <comrnscope.cam> domain name is indicative of Respondent's desire to use the domain name to inappropriately exploit Complainant's COMMSCOPE trademark. Respondent's typosquatting, in itself, is evidence of Policy ¶ 4(a)(iii) bad faith. 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 COMMSCOPE mark when it registered <comrnscope.cam> as a domain name. Respondent's prior knowledge of Complainant's trademark is evident because of the mark's notoriety and because the at-issue domain name is an obvious attempt at typosquatting. Respondent's registration and use of a confusingly similar domain name with knowledge of Complainant's rights in such domain name shows Respondent's bad faith pursuant to Policy ¶ 4(a)(iii). See Lemon Inc. v. Sumer Singh, FA 2110519 (Forum September 5, 2024 ("registration of a disputed domain name with actual knowledge of another's trademark rights is sufficient to establish bad faith, and can be shown by the notoriety of the mark and the use the Respondent makes of the disputed domain name"); see also, 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 <comrnscope.cam> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Paul M. DeCicco, Panelist

Dated: March 11, 2025