CommScope, Inc. of North Carolina v. Michael Crany / commscopeusa
Claim Number: FA1805001788121
Complainant is CommScope, Inc. of North Carolina (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is Michael Crany / commscopeusa (“Respondent”), represented by Michael Crany, Minnesota, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <commscopeusa.com>, registered with Wild West Domains, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 23, 2018; the Forum received payment on May 23, 2018.
On May 24, 2018, Wild West Domains, LLC confirmed by e-mail to the Forum that the <commscopeusa.com> domain name is registered with Wild West Domains, LLC and that Respondent is the current registrant of the name. Wild West Domains, LLC has verified that Respondent is bound by the Wild West Domains, 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 25, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 14, 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@commscopeusa.com. Also on May 25, 2018, 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 20, 2018, 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, CommScope, Inc. of North Carolina, creates the communications network infrastructure that connects people and technologies including wired and wireless networks. Complainant has 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 <commscopeusa.com> domain name is confusingly similar to Complainant’s mark because it merely adds the term “usa” and the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <commscopeusa.com> domain name. Complainant has not licensed or otherwise authorized Respondent to use its COMMSCOPE mark. Respondent is also not commonly known by the disputed domain name as the WHOIS information of record lists “Michael Crany / commscopeusa” as the registrant. Respondent is not using the <commscopeusa.com> domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to resolve to an inactive website. Further, Respondent uses the domain name in connection with a fraudulent email phishing scheme.
Respondent registered and is using the <commscopeusa.com> domain name in bad faith. Respondent attempts to disrupt Complainant’s business by diverting Internet users to Respondent’s website. Further, Respondent is using the domain name to create confusion with Complainant’s mark for Respondent’s commercial gain by passing off as Complainant and phishing for Internet users’ personal and financial information. Additionally, Respondent had actual knowledge of Complainant rights in the mark prior to registration of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, CommScope, Inc. of North Carolina, creates the communications network infrastructure that connects people and technologies including wired and wireless networks. Complainant has rights in the COMMSCOPE mark through registration with the USPTO (e.g., Reg. No. 1,865,198, registered Nov. 29, 1994). Respondent’s <commscopeusa.com> domain name is confusingly similar to Complainant’s mark.
Respondent registered the <commscopeusa.com> domain name on February 5, 2018.
Respondent does not have rights or legitimate interests in the <commscopeusa.com> domain name. Respondent uses the domain name in connection with a fraudulent email phishing scheme.
Respondent registered and is using the <commscopeusa.com> 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., 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., D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Respondent does not have rights and legitimate interests in the <commscopeusa.com> domain name. Complainant has not licensed or otherwise authorized Respondent to use its COMMSCOPE mark. Although the WHOIS information of record lists “Michael Crany / commscopeusa” as the registrant of the domain name, Respondent is not commonly known by the domain name because Respondent failed to provide additional affirmative evidence beyond the WHOIS information.
Respondent uses the domain name to resolve to an inactive website. Use of a domain name to resolve to an inactive website might not be considered a bona fide offering of goods and services or a legitimate noncommercial or fair use. See Thermo Electron Corp., FA 713851 (Forum July 12, 2006) (finding that the respondent’s non-use of the disputed domain names demonstrates that the respondent is not using the disputed domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)). Here, the resolving site displays no active content and features a message indicating that the site is not secure.
The domain name also redirects Internet users to Complainant’s own website. Use of a domain name to redirect to a complainant’s webpage might not be considered a bona fide offering of goods and services under Policy ¶¶ 4(c)(i) and (iii). See Direct Line Ins. plc, FA 1337658 (Forum Sept. 8, 2010) (“The Panel finds that using Complainant’s mark in a domain name over which Complainant has no control, even if the domain name redirects to Complainant’s actual site, is not consistent with the requirements of Policy ¶ 4(c)(i) or ¶ 4(c)(iii) . . .”). Here, the domain name resolves to an unsecure website that ultimately redirects to Complainant’s own website.
Respondent uses the domain name to pass off as Complainant to operate a phishing scheme. Use of a domain name to pass off as a complainant in furtherance of a phishing scheme is not a bona fide offering of goods and services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”). Complainant provides emails that show that Respondent attempted to pass off as an employee of Complainant and lure Internet users into providing personal and financial information for Respondent’s commercial benefit.
Therefore, Respondent fails to use the <commscopeusa.com> domain name in connection with a bona fide offering of goods and services pursuant to Policy ¶¶ 4(c)(i) and (iii).
Respondent uses the domain name to create confusion with Complainant’s mark for commercial gain by passing off as Complainant and phishing for Internet users’ information. Use of a domain name to pass off as a complainant in order to phish for internet users personal and/or financial information shows bad faith under Policy ¶ 4(b)(iv). See Qatalyst Partners LP, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use per Policy ¶ 4(b)(iv)).
Respondent had actual knowledge of Complainant’s rights in the COMMSCOPE mark prior to Respondent’s registration of the <commscopeusa.com> domain name. Therefore, Respondent registered and uses the domain name in bad faith under 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 <commscopeusa.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: July 3, 2018
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