Mediacom Communications Corporation v. Domain Admin / Domain Privacy Guard Sociedad Anonima Ltd
Claim Number: FA2005001896589
Complainant is Mediacom Communications Corporation (“Complainant”), represented by Robert M. Wasnofski, Jr. of Dentons US LLP, Illinois, USA. Respondent is Domain Admin / Domain Privacy Guard Sociedad Anonima Ltd (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mediacomtody.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 15, 2020; the Forum received payment on May 15, 2020.
On May 18, 2020, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <mediacomtody.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 May 21, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 10, 2020 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@mediacomtody.com. Also on May 21, 2020, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On June 16, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant, Mediacom Communications Corporation, is a large American cable television company that provides a wide variety of telecommunications services, including high-definition cable television services, video-on-demand services, and high-speed Internet and telephone services. Complainant has rights in the MEDIACOM trademark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,544,829, registered Mar. 5, 2002). Respondent’s <mediacomtody.com> domain name is confusingly similar to Complainant’s MEDIACOM mark since it incorporates the trademark in its entirety, merely adding the descriptive term “tody” and the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the disputed domain name because Respondent is not commonly known by the disputed domain name and is not authorized to use Complainant’s MEDIACOM mark. Further, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to host pay-per-click hyperlinks, some of which spread malware.
Respondent registered and is using the disputed domain name in bad faith. Respondent attracts users for commercial gain by displaying third-party sponsored commercial links. Respondent used the disputed domain name to spread malware. Respondent had actual knowledge of Complainant’s rights in the MEDIACOM mark prior to registering the disputed domain name. Respondent engages in typosquatting.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Mediacom Communications Corporation, is a large American cable television company that provides a wide variety of telecommunications services, including high-definition cable television services, video-on-demand services, and high-speed Internet and telephone services. Complainant has rights in the MEDIACOM trademark based upon registration with the USPTO (e.g., Reg. No. 2,544,829, registered Mar. 5, 2002). Respondent’s <mediacomtody.com> domain name is confusingly similar to Complainant’s MEDIACOM mark.
Respondent registered the <mediacomtody.com> domain name on April 22, 2016.
Respondent does not have rights or legitimate interests in the disputed domain name. Respondent uses the disputed domain name to host pay-per-click hyperlinks, some of which spread malware.
Respondent registered and is using the disputed domain name in bad faith.
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”).
Respondent’s <mediacomtody.com> domain name is confusingly similar to the MEDIACOM mark, as the domain name incorporates the mark in its entirety and merely adds the descriptive term “tody” (a misspelling of the word “today”).
Respondent has no rights or legitimate interests in the <mediacomtody.com> domain name, as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the MEDIACOM mark in any way. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Usama Ramzan,” which does not resemble the domain name.”). The WHOIS information identifies the registrant of the disputed domain name as “Domain Admin / Domain Privacy Guard Sociedad Anonima Ltd,” and no information on the record indicates Respondent is known otherwise or that it is authorized to register a domain name incorporating Complainant’s MEDIACOM mark. Therefore, Respondent has not been commonly known by the <mediacomtody.com> domain name.
Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name’s resolving website to display pay-per-click hyperlinks that resolve to third-party websites, some of which are suspected of disseminating malware. Use of a domain name that is confusingly similar to a complainant’s mark to resolve to a pay-per-click website is not a use indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007).
Respondent uses the disputed domain name to resolve to a page of pay-per-click links, through which Respondent presumably receives referral fees. Using a confusingly similar domain name to feature pay-per-click hyperlinks shows respondent’s bad faith per Policy ¶¶ 4(b)(iii) and (iv). See Transamerica Corporation v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1798316 (Forum Aug. 20, 2018).
Complainant suspects Respondent of using the <mediacomtody.com> domain name to periodically resolve to a website that spreads malware and adware. Use of a disputed domain name to install malware on Internet users’ devices constitutes bad faith under Policy ¶ 4(a)(iii). See Amazon Technologies, Inc. v. Timothy Mays aka Linda Haley aka Edith Barberdi, FA1504001617061 (Forum June 9, 2015).
In light of the fame and notoriety of the MEDIACOM mark, it is inconceivable that Respondent could have registered the <mediacomtody.com> domain name without actual knowledge of Complainant's rights in the marks. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (actual knowledge found through the name used for the domain and the use made of it.).
Additionally, Respondent’s <mediacomtody.com> domain name illustrates typosquatting. Typosquatting is independent evidence of bad faith in the registration and use of a domain name. See Cost Plus Management Services, Inc. v. xushuaiwei, FA 1800036 (Forum Sep. 7, 2018) per Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mediacomtody.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr., Panelist
Dated: June 28, 2020
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