Mediacom Communications Corporation v. meng xuan cao
Claim Number: FA2212002025893
Complainant is Mediacom Communications Corporation (“Complainant”), represented by Robert M. Wasnofski,Jr. of Dentons US LLP, Illinois. Respondent is meng xuan cao (“Respondent”), CN.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nmediacom.com>, registered with West263 International Limited.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to Forum electronically on December 30, 2022; Forum received payment on December 30, 2022.
On January 2, 2023, West263 International Limited confirmed by e-mail to Forum that the <nmediacom.com> domain name is registered with West263 International Limited and that Respondent is the current registrant of the names. West263 International Limited has verified that Respondent is bound by the West263 International Limited 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 4, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 24, 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@nmediacom.com. Also on January 4, 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 Paul M. DeCicco 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.
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest that notwithstanding that the operative domain name registration agreement may be in Chinese there is a likely possibility that the Respondent is reasonably conversant and proficient in the English language and that going forward in a language other than English would place an unjust burden on Complainant. Notably, the at-issue domain name contains English characters and English words. Therefore, after considering the circumstances of the present case including Respondent’s failure to respond or object to going forward in English, the Panel finds that the proceeding should be in English.
A. Complainant
Complainant contends as follows:
Complainant is a New York-based global media and advertising company.
Complainant claims rights in the MEDIACOM mark through registration with the United States Patent and Trademark Office (“USPTO”).
The at-issue domain name <nmediacom.com> is identical or confusingly similar to Complainant’s mark because it wholly incorporates Complainant’s MEDIACOM mark differing only through the addition of the letter “n” , along with the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the at-issue domain name. Respondent is not commonly known by the domain name, nor has Complainant authorized Respondent to use the MEDIACOM mark in any way. Additionally, Respondent fails to use the domain name in connection with make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, Respondent fails to make active use of the at-issue domain name.
Respondent registered and uses the at-issue domain name in bad faith. First, Respondent registered and uses the domain name to attract users with a false impression of affiliation with Complainant. Additionally, Respondent fails to make active use of the domain name. Furthermore, Respondent had actual knowledge of Complainant’s rights in the MEDIACOM mark prior to registration of <nmediacom.com>.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in MEDIACOM.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain names after Complainant acquired rights in the MEDIACOM trademark.
Respondent holds the at-issue domain name passively.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant shows that it has a USPTO registration for its MEDIACOM trademark. Such registration is sufficient to demonstrate Complainant’s rights in a mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <nmediacom.com>domain name contains Complainant’s entire MEDIACOM trademark prefixed by the letter “n” and with all followed by the “.com” top level. The differences between Respondent’s domain name and Complainant’s trademark fail to distinguish the domain name from the trademark for the purposes of the Policy. Therefore, the Panel concludes that Respondent’s <nmediacom.com> domain name is confusingly similar to MEDIACOM pursuant to 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.’).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as ““meng xuan cao” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <nmediacom.com> domain name or by MEDIACOM. The Panel therefore concludes that Respondent is not commonly known by <nmediacom.com> for the purposes of Policy ¶ 4(c)(ii). See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”); see also, Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 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).
Respondent holds the at-issue domain name passively. Browsing to <nmediacom.com> returns an error message stating: “This site can’t be reached.” Respondent’s use of the domain name in this manner indicates neither a bona fide offering of goods or services under Policy ¶ 4 (c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Bloomberg L.P. v SC Media Servs. & Info. SRL, FA 0296583 (Forum, Sept. 2, 2004) (Finding that resolving to an empty page featuring no substantive content or links is evidence that Respondent fails to actively use the disputed domain name, suggesting a lack of rights and legitimate interests in the disputed domain name); see also Dell Inc. v. link growth / Digital Marketing, FA 1785283 (Forum June 7, 2018) (“Respondent’s domain names currently display template websites lacking any substantive content. The Panel finds that Respondent has does not have rights or legitimate interests with respect of the domain name per Policy ¶¶ 4(c)(i) or (iii).”).
Given the forgoing, Complainant satisfies its initial burden and demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶4(a)(ii).
Respondent’s <nmediacom.com>domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present that allow the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First and as mentioned above regarding rights and legitimate interests, Respondent holds <nmediacom.com> passively. Respondent’s failure to actively use the at-issue domain name shows bad faith registration and use of the domain name pursuant to Policy ¶ 4(a)(iii). See Dermtek Pharmaceuticals Ltd. v. Sang Im / Private Registration, FA1310001522801 (Forum Nov. 19, 2013) (holding that because the respondent’s website contained no content related to the domain name and instead generated the error message “Error 400- Bad Request,” the respondent had registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii)); see also, Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018) (“Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent uses the domain name to host an inactive website.”).
Moreover, Respondent registered the <nmediacom.com> domain name knowing that Complainant had trademark rights in MEDIACOM and thus in <nmediacom.com>. Respondent’s actual knowledge of Complainant’s relevant rights is evident from the notoriety of Complainant’s trademark and from the fact that Respondent simply added an unrelated character to such mark in forming the at-issue domain name. Respondent’s registration of <nmediacom.com> while having knowledge of Complainant’s trademark rights in MEDIACOM further indicates Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii).. See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed the disputed domain name”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <nmediacom.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: January 27, 2023
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page