CommScope, Inc. of North Carolina v. Xing Chun Ding
Claim Number: FA2105001944305
Complainant is CommScope, Inc. of North Carolina (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is Xing Chun Ding (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <commscopecn.com>, registered with GoDaddy.com, LLC.
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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 7, 2021; the Forum received payment on May 7, 2021.
On May 10, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <commscopecn.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 May 11, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 1, 2021 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@commscopecn.com. Also on May 11, 2021, 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 2, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (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, CommScope, Inc. of North Carolina, creates infrastructure for telecommunication networks. Complainant has rights in the COMMSCOPE mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,865,198, registered Nov. 29, 1994). Respondent’s <commscopecn.com> domain name is confusingly similar to Complainant’s COMMSCOPE mark since it contains the entire mark, simply adding the country code “cn” and the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <commscopecn.com> domain name because Respondent is not commonly known by the disputed domain name and is not authorized or permitted to use Complainant’s COMMSCOPE mark. Additionally, Respondent fails to use the disputed domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to host adult-oriented content and advertising links.
Respondent registered and uses the <commscopecn.com> domain name in bad faith. Respondent trades off Complainant’s goodwill to attract users to its webpage for commercial gain. Additionally, Respondent’s use of the disputed domain name to display pornographic content evidences bad faith. Respondent also engaged in typosquatting by registering a domain name nearly identical to Complainant’s mark. Finally, Respondent had actual knowledge of Complainant’s rights in the COMMSCOPE mark at the time of registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, based upon the uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <commscopecn.com> domain name.
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”).
Complainant claims rights in the COMMSCOPE mark based upon registration with the USPTO. (e.g., Reg. No. 1,865,198, registered Nov. 29, 1994). Registration with the USPTO is generally sufficient to establish rights in a mark per Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). Complainant provides evidence of its registration with the USPTO (e.g., Reg. No. 1,865,198, registered Nov. 29, 1994). The Panel finds that Complainant has rights in the COMMSCOPE mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <commscopecn.com> domain name is confusingly similar to Complainant’s COMMSCOPE mark since it contains the entire mark, simply adding the country code “cn” and the “.com” gTLD. Minor additions to a mark, such as a geographic term and a gTLD, are generally insufficient to overcome confusing similarity between a domain name and a mark per Policy ¶ 4(a)(i). See Laboratoires De Biologie Vegetale Yves Rocher v. Choi, FA 104201 (Forum Mar. 22, 2002) (holding that the <yveskorea.com> domain name was confusingly similar to the complainant’s YVES ROCHER mark even though the domain name was only similar in part). Complainant notes that “cn” is an country code abbreviation for “China.” The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”). The Panel finds that Complainant has made a prima facie case.
Complainant argues that Respondent does not have rights or legitimate interests in the <commscopecn.com> domain name because Respondent is not commonly known by the disputed domain name and is not authorized or permitted to use Complainant’s COMMSCOPE mark. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.). Additionally, lack of authorization to use a complainant’s mark may demonstrate the respondent is not commonly known by the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The WHOIS information of record lists the registrant as “Xing Chun Ding” and Complainant contends that it did not authorize Respondent’s use of the COMMSCOPE mark. The Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant claims that Respondent fails to use the <commscopecn.com> domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use and instead uses the disputed domain name to host adult-oriented content and advertising links. Use of a disputed domain name to display commercial hyperlinks is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See SimScale GmbH v. Oliver Sharp, FA1401001537384 (Forum Feb. 3, 2014) (holding that the respondent’s “use of the disputed domain name to promote links to unrelated third parties is not protected as a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Similarly, hosting adult-oriented content is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Karen Koehler v. Hiroshi Ishiura/ Lifestyle Design Inc., FA1730673 (Forum June 1, 2017) (holding that “Respondent is not using the disputed domain name for any bona fide offering of goods or services or a legitimate non-commercial fair use because Respondent uses the domain name to host a pornographic website.”). Complainant provides a screenshot of the advertisements and pornographic material hosted at the disputed domain. The Panel finds that this use does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶4(c)(i) or (iii) and Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has proved this element.
Complainant argues that Respondent registered and uses the <commscopecn.com> domain name in bad faith because Respondent trades off Complainant’s goodwill to attract users to its webpage for commercial gain. Use of a disputed domain name to profit from a complainant’s reputation suggests bad faith per Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); 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). Complainant provides screenshots of the advertisements at the disputed domain and argues that Respondent profits from diverting users to the resolving webpage. This is evidence that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Complainant claims that Respondent’s use of the <commscopecn.com> domain name to display pornographic content evidences bad faith. Hosting adult-oriented content at a disputed domain may evidence bad faith per Policy ¶ 4(a)(iii). See Wells Fargo & Co. v. Party Night Inc., FA 144647 (Forum Mar. 18, 2003) (finding that the respondent’s tarnishing use of the disputed domain names to redirect Internet users to adult-oriented websites was evidence that the domain names were being used in bad faith). Complainant provides screenshots of Respondent’s webpage, which displays pornographic content. This is evidence of bad faith per Policy ¶ 4(a)(iii).
Complainant also argues that Respondent engaged in typosquatting by registering a domain name nearly identical to Complainant’s mark. Typosquatting may act as independent evidence of bad faith per Policy ¶ 4(a)(iii). See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Forum Feb. 20, 2007) (finding bad faith registration and use of the <microssoft.com> domain name as it merely misspelled the complainant’s MICROSOFT mark). Complainant contends that Respondent’s mere addition of the “cn” country code to Complainant’s COMMSCOPE mark in the <commscopecn.com> domain name constitutes typosquatting. This is evidence of bad faith per Policy ¶ 4(a)(iii).
Complainant argues that Respondent had actual knowledge of Complainant’s rights in the COMMSCOPE mark at the time it registered the <commscopecn.com> domain name. Actual knowledge of a Complainant’s rights in a mark is evidence of bad faith per Policy ¶ 4(a)(iii) and may be shown through the entirety of circumstances surrounding registration and use of a disputed domain name. See 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).”); see also Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration). Complainant claims that Respondent’s registration of the disputed domain name shows actual knowledge because it incorporates the COMMSCOPE mark, which has no meaning other than as an identifier of Complainant’s business. The Panel finds that Respondent had actual knowledge of Complainant’s mark and registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant has proved this element.
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 <commscopecn.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
June 4, 2021
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