CommScope, Inc. of North Carolina v. Roju Cole
Claim Number: FA2211002021326
Complainant is CommScope, Inc. of North Carolina (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is Roju Cole (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <commuscope.com>, registered with NameCheap, Inc..
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on November 22, 2022; Forum received payment on November 22, 2022.
On November 22, 2022, NameCheap, Inc. confirmed by e-mail to Forum that the <commuscope.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 23, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 13, 2022 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@commuscope.com. Also on November 23, 2022, 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, Forum transmitted to the parties a Notification of Respondent Default.
On December 16, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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 states that it provides communication products and services. With roots dating back to 1937, Complainant has played a role in virtually all of the world’s best communication networks. It creates the infrastructure that connects people and technologies, including wired and wireless networks. Complainant was instrumental in creating cable TV infrastructure, the first wireless networks, the first data centers, and the first intelligent buildings. Today, Complainant offers a wide range of services under the COMMSCOPE mark, including, broadband solutions, enterprise solutions, and wireless solutions. Complainant has also used the COMMSCOPE mark in connection with a wide range of products, including antennas, cables, connectors, and networking systems, among others. Complainant has rights in the COMMSCOPE mark through its registration in the United States in 1994. The mark is well known.
Complainant alleges that the disputed domain name is confusingly similar to its COMMSCOPE mark because it consists of a misspelling of the mark (the letter “u” is added), with the addition of the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name, as Respondent is not commonly known by the name and Complainant has not authorized Respondent to use its mark. The disputed domain name resolved to a parked page displaying advertising links, some of which for services that compete with those of Complainant. Respondent used the disputed domain name in an email is impersonating one of Complainant’s employees in furtherance of a phishing scheme. Specifically, the signature block of the phishing email displays the name and title of one of Complainant’s actual employees. Respondent is intentionally using the COMMSCOPE mark to trade off of Complainant’s goodwill.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. The resolving website displays advertising hyperlinks. Respondent has engaged in a pattern of bad faith registration and use and has engaged in phishing and typosquatting. Respondent had actual knowledge of Complainant’s trademark rights prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark COMMSCOPE and uses it to market communication products and services. The mark is well known.
Complainant’s rights in its mark date back to at least 1994.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain name in furtherance of an email phishing scheme; the signature block of the phishing email displays the actual name and title of one of Complainant’s employees. The resolving website displays advertising hyperlinks to services, some of which compete with those of Complainant.
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”).
The disputed domain name consists of a misspelling of Complainant’s COMMSCOPE mark (a letter “u” is added), with the addition of the “.com” generic top-level-domain (“gTLD”). Similar changes in a registered mark have failed sufficiently to distinguish a domain name for the purposes of 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’). The Panel therefore finds that that the disputed domain name is confusingly similar to the Complainant’s mark under Policy ¶4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its COMMSCOPE mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Here, the WHOIS information for the disputed domain name lists the registrant as “Roju Cole”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name in emails in furtherance of a phishing scheme. Phishing attempts evince a lack of any bona fide offering of goods or services or legitimate noncommercial or fair use. See Agilent Techs., Inc. v. Ahmed / My Company, FA 1791549 (Forum Jul. 12, 2018) (“Complainant provide[d] a copy of a redacted email showing a phishing scheme wherein Respondent impersonates Complainant’s employees in an attempt to have customers transfer large sums of money into Respondent’s bank accounts. The Panel finds that this use is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii).”); see also Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) (“On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either 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).”). The Panel therefore finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).
Further, the resolving website displays advertising links to third-party sites, some of which offer services that compete with those of Complainant. Use of a domain name to redirect users to unrelated third-party sites (whether or not they compete with Complainant) is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant); see also Coachella Music Festival, LLC v. josh greenly / All Access Tickets, FA1507001629217 (Forum August 10, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name as required under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), where the respondent was using the disputed domain name to host a web page that featured links to services that competed with those of the complainant). Similarly, use of a disputed domain name to spread malicious software to users is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Snap Inc. v. Domain Admin / Whois Privacy Corp., FA 1735300 (Forum July 14, 2017) (“Use of a disputed domain name to offer malicious software does not constitute a bona fide offering or a legitimate use per Policy ¶ 4(c)(i) & (iii).”). Therefore, for this reason also, the Panel finds that Respondent is not using the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or 4(c)(iii).
For all the above reasons, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent has engaged in a pattern of bad faith registration and use. In support, it cites a case in which the respondent was “Markus Ogurek” and alleges that “based on the similarity of the matters, the respondents in both cases are likely the same.” Since “Markus Ogurek” is the name of one of Complainant’s employees, many ill-intentioned registrants might use that name, in particular when registering a domain name in furtherance of a phishing scheme. Respondent in the instant case is “Roju Cole”. Complainant does not present any evidence to support its allegation that Respondent in the instant case is the same as the respondent in the cited case. Thus the Panel finds that Respondent has failed to satisfy its burden of proof for the allegation that Respondent engaged in a pattern of bad faith registration and use, and it will not further discuss that allegation.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the disputed domain name was used in furtherance of a phishing scheme. This can evince bad faith under Policy ¶ 4(a)(iii). See Agilent Techs., Inc. v. Ahmed / My Company, FA 1791549 (Forum Jul. 12, 2018) (“Complainant has provided evidence that Respondent attempted to impersonate Complainant’s employees to induce customers to transfer money to Respondent. The Panel therefore finds that Respondent engages in phishing and this demonstrates further bad faith per Policy ¶ 4(a)(iii).”); see also Google Inc. v. Domain Admin / Whois Privacy Corp., FA1506001622862 (Forum Aug. 10, 2015) (finding that the respondent’s apparent use of the disputed domain name in furtherance of a ‘phishing’ scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)); see also Airbnb, Inc. v. JAMES GRANT, FA1760182 (Forum December 28, 2017) (“Using a misleading email address to defraud unwary customers certainly constitutes bad faith.”).The Panel therefore finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Further, also as already noted, Respondent uses the disputed domain name to disrupt Complainant’s business and attract users for commercial gain through the use of third-party links. Panels have found such a use of a domain name to constitute bad faith under Policy ¶ 4(b)(iv) and/or (iii). See Capital One Financial Corp. v. Above.com Domain Privacy / Above.com Domain Privacy, FA1501001598657 (Forum February 20, 2015) (“This Panel agrees that Respondent’s use as shown in Exhibits C-D illustrates that Respondent here seeks commercial gain through a likelihood of confusion, as competing hyperlinks have been found to establish evidence of intent to seek commercial gain through referral fees, and thus demonstrates bad faith registration under Policy ¶ 4(b)(iv).”). Bad faith has been found even where a respondent has commercially benefited through links unrelated to a complainant’s mark. See Bank of Am. Fork v. Shen, FA 699645 (Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); see also PopSockets LLC v. san mao, FA 1740903 (Forum Aug. 27, 2017) (finding disruption of a complainant’s business which was not directly commercial competitive behavior was nonetheless sufficient to establish bad faith registration and use per Policy ¶ 4(b)(iii)); 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). Thus, the Panel finds bad faith registration and use under Policy ¶¶ 4(b)(iii) and/or (iv).
Additionally, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the signature block of the phishing email displays the actual name and title of one of Complainant’s employees. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also 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.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Finally, by merely adding a letter in Complainant’s mark, Respondent engages in typosquatting. A finding of typosquatting can evince bad faith under Policy ¶ 4(a)(iii). See Webster Financial Corporation and Webster Bank, National Association v. Zhichao Yang, FA2110001970133 (Forum Nov. 24, 2021) (“Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a domain name hoping that internet users will inadvertently type the malformed string when searching for products or services associated with the target trademark, or will otherwise confuse the misspelled trademark laden domain name with its target trademark, a web address, an email address, or some other reference to the mark holder.”); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)); see also Sports Auth. Mich., Inc. v. Skander, FA 135598 (Forum Jan. 7, 2002) (stating that “[b]y registering the ‘typosquatted’ domain name in [Complainant’s] affiliate program, Respondent profits on the goodwill of [Complainant’s] protected marks and primary Internet domain names,” which is evidence of bad faith registration and use). As such, the Panel finds bad faith typosquatting under 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 <commuscope.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: December 16, 2022
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