Mediacom Communications Corporation v. Rajiv Krishnaswamy
Claim Number: FA2212002025698
Complainant is Mediacom Communications Corporation (“Complainant”), represented by Robert M. Wasnofski,Jr. of Dentons US LLP, Illinois. Respondent is Rajiv Krishnaswamy (“Respondent”), IN.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <369mediacom.com>, (‘the Domain Name’) registered with GoDaddy.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to Forum electronically on December 29, 2022; Forum received payment on December 29, 2022.
On Dec 30, 2022, GoDaddy.com, LLC confirmed by e-mail to Forum that the <369mediacom.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 January 3, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 23, 2023 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@369mediacom.com. Also on January 3, 2023, 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 January 27, 2023 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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
The Complainant is the owner of the mark MEDIACOM, registered, inter alia, in the USA for cable transmission services with first use recorded as 1995. It operates its web site at mediacomcc.com.
The Domain Name registered in 2022 is confusingly similar to the Complainant’s mark adding only the numbers ‘369’ and the gTLD .com which do not prevent said confusing similarity.
The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant.
The Domain Name has been used for pay per click links to third party commercial competing sites.
The Respondent’s use is not a bona fide offering of services or a legitimate non commercial or fair use. The Domain Name has been registered and used in opportunistic bad faith to take advantage of the Complainant’s trade mark to confuse Internet users for commercial gain and to disrupt the Complainant’s business.
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark MEDIACOM, registered, inter alia, in the USA for cable transmission services with first use recorded as 1995.
The Domain Name registered in 2022 has been used for competing commercial pay per click links.
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 Domain Name consists of the Complainant's MEDIACOM mark (which is registered, inter alia, in the USA for cable transmission services with first use recorded as 1955), the generic number ‘369’ and the gTLD .com.
Previous panels have found confusing similarity when a respondent merely adds generic numbers to a Complainant's mark. See Nintendo of Am., Inc. v. Lizmi, FA 94329 (Forum Apr. 24, 2000)
A gTLD does not serve to distinguish a domain name from a Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
The Panel holds that the addition of the generic number ‘369’ and the gTLD .com does not prevent confusing similarity between the Complainant’s mark and the Domain Name.
Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s registered mark.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark. There is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 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).The use of the Domain Name is commercial and so cannot be legitimate non commercial fair use.
The web site attached to the Domain Name points to commercial competing pay per click links. It does not make it clear that there is no commercial connection with the Complainant. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. (See Vance Int’l Inc v Abend, FA 0970871 (Forum June 8, 2007)(Concluding that the operation of a pay per click web site at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate non commercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially benefitting from the click through fees.)
The Respondent has not answered this Complaint and has not rebutted the prima face case evidenced by the Complainant as set out herein.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Use for pay per click links of a Domain Name containing a complainant’s mark with a reputation indicates bad faith being disruptive of that complainant’s business and diverting customers for commercial gain and can indicate actual knowledge of the complainant and its business. In the opinion of the panelist the use made of the Domain Name is confusing and disruptive in that visitors to the site might reasonably believe the links offering the same services as the Complainant are connected to or approved by the Complainant whose mark is contained in the Domain Name.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site or services offered on it likely to disrupt the business of the Complainant. See Health Republic Insurance Company v Above.comLegal, FA 1506001622088, (Forum July 10, 2015) re diversion to pay per click links.
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <369mediacom.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: January 27, 2023
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