Mediacom Communications Corporation v. Open Waters Limited
Claim Number: FA2211002018626
Complainant is Mediacom Communications Corporation ("Complainant"), United States, represented by Robert M. Wasnofski, Jr. of Dentons US LLP, United States. Respondent is Open Waters Limited ("Respondent"), Belize.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mediacometoday.com>, registered with GoDaddy Online Services Cayman Islands Ltd.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to Forum electronically on November 1, 2022; Forum received payment on November 1, 2022.
On Nov 03, 2022, GoDaddy Online Services Cayman Islands Ltd. confirmed by email to Forum that the <mediacometoday.com> domain name is registered with GoDaddy Online Services Cayman Islands Ltd. and that Respondent is the current registrant of the name. GoDaddy Online Services Cayman Islands Ltd. has verified that Respondent is bound by the GoDaddy Online Services Cayman Islands Ltd. 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 November 7, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 28, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@mediacometoday.com. Also on November 7, 2022, the Written Notice of the Complaint, notifying Respondent of the email 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 December 2, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a cable television company that serves more than 1,500 communities in the United States. Complainant has used the MEDIACOM mark in connection with its services since about 1995. Complainant owns numerous trademark registrations for the MEDIACOM mark, in standard character form and otherwise. Complainant uses various domain names in connection with its services, including <mediacomtoday.com>, which Complainant has used since at least as early as July 2005.
Respondent is the registrant of the disputed domain name <mediacometoday.com>, which was registered in February 2008. The domain name is being used to display pay-per-click links, including links to services related to those offered by Complainant. Complainant states that Respondent is not commonly known by the domain name, is not a licensee or subsidiary of Complainant, and is not authorized to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <mediacometoday.com> is confusingly similar to its MEDIACOM mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <mediacometoday.com> incorporates Complainant's registered MEDIACOM trademark, adding a letter "E," the generic term "today" (which also appears in Complainant's domain name), and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Mediacom Communications Corp. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1945391 (Forum June 21, 2021) (finding <mediacomtlday.com> confusingly similar to MEDIACOM); Mediacom Communications Corp. v. Qiang Wang, FA 1944231 (Forum June 18, 2021) (finding <mediacomtoda.com> confusingly similar to MEDIACOM); Mediacom Communications Corp. v. Domain Administrator / Fundacion Privacy Services LTD, FA 1913479 (Forum Oct. 23, 2020) (finding <mediacomtodat.com> confusingly similar to MEDIACOM); Mediacom Communications Corp. v. Hulmiho Ukolen / Poste restante / Stick Pohlavson, FA 1904241 (Forum Aug. 21, 2020) (finding <wwwmediacomtoday.com> and <mymediacomtoday.com> confusingly similar to MEDIACOM); Mediacom Communications Corp. v. Host Master / Transure Enterprise Ltd, FA 1903050 (Forum Aug. 7, 2020) (finding <mediacommtoday.com> confusingly similar to MEDIACOM). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and its sole apparent use has been to display pay-per-click links, at least some of which are related to Complainant's industry. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Mediacom Communications Corp. v. Qiang Wang, supra (finding lack of rights or interests in similar circumstances); Mediacom Communications Corp. v. Domain Administrator / Fundacion Privacy Services LTD, supra (same); Mediacom Communications Corp. v. Hulmiho Ukolen / Poste restante / Stick Pohlavson, supra (same); Mediacom Communications Corp. v. Host Master / Transure Enterprise Ltd, supra (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name that incorporates Complainant's well-known mark and is identical, but for a typographical error, to a domain name used by Complainant. The only apparent use that has been made of the domain name is to display pay-per-click links, at least some of which are related to Complainant's industry. Such circumstances are indicative of bad faith registration and use under the Policy. See, e.g., Mediacom Communications Corp. v. Qiang Wang, supra (finding bad faith registration and use in similar circumstances); Mediacom Communications Corp. v. Domain Administrator / Fundacion Privacy Services LTD, supra (same); Mediacom Communications Corp. v. Hulmiho Ukolen / Poste restante / Stick Pohlavson, supra (same); Mediacom Communications Corp. v. Host Master / Transure Enterprise Ltd, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mediacometoday.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: December 2, 2022
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