CommScope, Inc. of North Carolina v Liana Yorke
Claim Number: FA1712001764027
Complainant is CommScope, Inc. of North Carolina (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is Liana Yorke (“Respondent”), Washington, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <commsccope.com>, registered with Domain.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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 21, 2017; the Forum received payment on December 21, 2017.
On December 22, 2017, Domain.com, LLC confirmed by e-mail to the Forum that the <commsccope.com> domain name is registered with Domain.com, LLC and that Respondent is the current registrant of the name. Domain.com, LLC has verified that Respondent is bound by the Domain.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 December 22, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 11, 2018 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@commsccope.com. Also on December 22, 2017, 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 January 16, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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
1. Complainant, CommScope, Inc. of North Carolina, creates the infrastructure that connections people and technologies, including wired and wireless networks. Complainant uses its COMMSCOPE mark to promote its products and services including broadband solutions, enterprise solutions, and wireless solutions. Complainant established rights in the COMMSCOPE mark through registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,865,198, registered Nov. 29, 1994). Respondent’s <commsccope.com>[1] domain name is confusingly similar to Complainant’s COMMSCOPE mark because it merely adds an additional letter “c” and the generic top-level domain (“gTLD”) “.com” to the fully incorporated mark.
2. Respondent does not have rights or legitimate interests in the <commsccope.com> domain name. Complainant has not licensed or otherwise unauthorized Respondent to use its COMMSCOPE mark in any fashion.
3. Respondent is not commonly known by the <commsccope.com> domain name as the WHOIS information of record lists “Liana Yorke” as the registrant. Respondent also is not using the <commsccope.com> domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent is using the <commsccope.com> domain name to divert Internet users to Respondent’s website, which features pay-per-click links from which Respondent likely profits.
4. Respondent registered and is using the <commsccope.com> domain name in bad faith. Respondent has engaged in a pattern of bad faith registrations by slightly misspelling popular marks in domain names.
5. Additionally, Respondent uses the domain name to disrupt Complainant’s business by diverting Internet users to Respondent’s competing website. Respondent is also attempting to create a likelihood of confusion between the domain name and Complainant’s mark for Respondent’s own commercial gain.
6. Further, Respondent registered the <commsccope.com> domain name with full knowledge of Complainant’s rights in the COMMSCOPE mark.
7. Finally, Respondent engaged in typosquatting.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the COMMSCOPE mark. Respondent’s domain name is confusingly similar to Complainant’s COMMSCOPE mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <commsccope.com> domain name and that Respondent registered and uses the 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant registered its COMMSCOPE mark with the USPTO (e.g., Reg. No. 1,865,198, registered Nov. 29, 1994). Registration of a mark with a trademark authority, such as the USPTO, confers rights in a mark. 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)). Therefore, the Panel concludes that Complainant has rights in the COMMSCOPE mark for the purposes of Policy ¶ 4(a)(i).
Next, Complainant contends that Respondent’s <commsccope.com> domain name is confusingly similar to Complainant’s COMMSCOPE mark because it merely adds an additional letter “c” and the gTLD “.com” to the fully incorporated mark. The addition of a letter and a gTLD do not negate confusing similarity under Policy ¶ 4(a)(i). See Bank of America Corporation v. Above.com Domain Privacy, FA 1629452 (Forum Aug. 18, 2015) (finding that the <blankofamerica.com> domain name contains the entire BANK OF AMERICA mark and merely adds the gTLD ‘.com’ and the letter ‘l’ to create a common misspelling of the word ‘bank.’). Therefore, the Panel holds that Respondent’s <commsscope.com> domain name is confusingly similar to Complainant’s COMMSCOPE mark.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <commsscope.com> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant alleges that Respondent does not have rights or legitimate interests in the <commsscope.com> domain name. Complainant claims it has not licensed or otherwise authorized Respondent to use its COMMSCOPE mark in any fashion. Absent contradicting evidence in the record that a respondent was authorized to use a complainant’s mark in a domain name or that a respondent is commonly known by the domain name, the respondent is presumed to lack rights and legitimate interests in the domain name. See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name). Under Policy ¶ 4(c)(ii), WHOIS information can be used to support a finding that a respondent is not commonly known by a domain name. See State 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)). The WHOIS information of record for the <commsccope.com> domain name lists “Liana Yorke” as the registrant. Therefore, the Panel concludes that Respondent is not commonly known by the <commsccope.com> domain name.
Further, Complainant argues that Respondent is not using the <commsccope.com> domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Complainant has provided evidence that Respondent uses the <commsccope.com> domain name to divert Internet users to Respondent’s website featuring pay-per-click links, from which Respondent likely profits. Use of a domain name to redirect users to a website featuring pay-per-click hyperlinks may be considered a failure to make a bona fide offering of goods or services or legitimate noncommercial or fair use when the domain name incorporates the mark of another. See Materia, Inc. v. Michele Dinoia, FA1507001627209 (Forum Aug. 20, 2015) (“The Panel finds that Respondent is using a confusingly similar domain name to redirect users to a webpage with unrelated hyperlinks, that Respondent has no other rights to the domain name, and finds that Respondent is not making a bona fide offering or a legitimate noncommercial or fair use.”). Complainant has shown that screenshots of the <commsccope.com> domain name’s resolving website indicate the sites feature links such as “Degree MS,” “University Degree,” and “Uni Course.” Accordingly, the Panel finds that Respondent uses the <commsccope.com> domain name to divert Internet users to Respondent’s website that features pay-per-click links, thus Respondent fails to use the domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and is using the <commsccope.com> domain name in bad faith by disrupting Complainant’s business and diverting Internet users to Respondent’s website that features competing pay-per-click hyperlinks. Use of a domain name to disrupt a Complainant’s business may indicate bad faith under Policy ¶ 4(b)(iii). See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”). As indicated previously, screenshots of the <commsccope.com> domain name’s resolving website show that the site is used to display competing hyperlinks, from which Respondent likely profits. Therefore, the Panel finds that Respondent uses the domain name to disrupt Complainant’s business and holds that Respondent engaged in bad faith registration and use under Policy ¶ 4(b)(iii).
Further, Complainant contends that Respondent registered the <commsccope.com>domain name with actual knowledge of Complainant’s rights in the COMMSCOPE mark. Actual knowledge may be evidence of bad faith registration and use. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). Complainant contends that Respondent had actual knowledge of Complainant’s rights in the mark because Respondent engaged in typosquatting. Typosquatting may evidence actual knowledge. See InfoSpace, Inc. v. Greiner, FA 227653 (Forum Mar. 8, 2004) (“Respondent’s domain name is a simple and popular variation of a trademark commonly used by typosquatters – the addition of the “www” prefix to a known trademark, in this case the DOGPILE mark. Such a domain name evidences actual knowledge of the underlying mark prior to the registration of the domain name . . . .”). As such, the Panel concludes that Respondent registered the <commsccope.com> domain name with actual knowledge of Complainant’s rights in the COMMSCOPE mark, demonstrating bad faith under Policy ¶ 4(a)(iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <commsccope.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: January 19, 2018
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page