CommScope, Inc. of North Carolina v. Forrest Bailey
Claim Number: FA2303002037984
Complainant is CommScope, Inc. of North Carolina (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is Forrest Bailey (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <systimax.xyz>, (‘the Domain Name’) registered with Sav.com, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of 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 March 29, 2023; Forum received payment on March 29, 2023.
On March 29, 2023, Sav.com, LLC confirmed by e-mail to Forum that the <systimax.xyz> Domain Name is registered with Sav.com, LLC and that Respondent is the current registrant of the name. Sav.com, LLC has verified that Respondent is bound by the Sav.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 March 30, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 19, 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@systimax.xyz. Also on March 30, 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 April 26, 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 owns the registered trade mark SYSTIMAX, registered, inter alia, in the USA for telecommunications goods and services with first use recorded as 1989.
The Domain Name registered in 2023 consists of the Complainant’s mark verbatim and the gTLD ‘.xyz’ which does not distinguish the Domain Name from the Complainant’s mark. The Domain Name is therefore identical to the Complainant’s SYSTIMAX mark for the purposes of the Policy.
Respondent is not commonly known by the Domain Name or authorized by the Complainant to use the latter’s mark. The Domain Name has not been used but has been offered for sale generally for $1450 which is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.
The Domain Name is being passively held. Offering it for sale for a sum in excess of out of pocket registration costs demonstrates the Complainant’s primary intention behind registering the Domain Name is commercial gain and is opportunistic bad faith registration and use.
The Respondent has been the subject of adverse decisions under the UDRP in similar circumstances and has registered other domain names containing trademarks of third parties showing a pattern of bad faith activity.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant owns the registered trade mark SYSTIMAX, registered, inter alia, in the USA for telecommunications goods and services with first use recorded as 1989.
The Domain Name registered in 2023 has not been used but has been offered for sale generally for $1450. The Respondent has been the subject of other adverse decisions under the UDRP and owns other domain names each containing the trade mark of a third party.
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 SYSTIMAX trade mark (registered in the USA for, inter alia, telecommunications goods and services with first use recorded as 1989) and the gTLD ‘.xyz’.
The gTLD ‘.xyz’ does not serve to distinguish the Domain Name from the Complainant’s mark, which is the distinctive component of the Domain Name. 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).
Accordingly, the Panel holds that the Domain Name is identical for the purpose of the Policy to a mark in which the Complainant has rights.
Rights or Legitimate Interests
The Respondent is not authorized by the Complainant and does not appear to be commonly known by the Domain Name. See 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).
The Domain Name containing the Complainant’s mark has been offered for sale for a sum well in excess of registration costs which is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Twentieth Century Fox Film Corporation v. Diego Ossa, FA1501001602016 (Forum Feb. 26, 2015).
The Respondent has not answered this complaint and has not rebutted the prima facie case evidenced by the Complainant as set out herein.
As such the Panel 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
The Domain Name containing the Complainant’s mark has been offered for sale generally. See Capital One Financial Corp. v. haimin xu, FA 1819364 (Forum Jan. 8, 2019) (“A general offer to sell a domain name can be evidence the respondent intended to make such an offer at the time it registered the name, supporting a finding of bad faith per Policy ¶ 4(b)(i).”);
The Respondent has been the subject of other adverse decisions under the UDRP and owns other domain names each containing the trade mark of a third party. There is, therefore, evidence of a pattern of bad faith activity on the part of the Respondent. See Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA1209001464477 (Forum Nov. 30, 2012) (finding where the record reflected that the respondent had been a respondent in other UDRP proceedings in which it was ordered to transfer disputed domain names to various complainants established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)). See Philip Morris USA Inc. v. RapidClic / VAUCLIN Olivier, FA1309001520008 (Forum Nov. 7, 2013) (finding that the respondent’s registration of multiple infringing domain names indicates a pattern of bad faith registration and use under Policy ¶ 4(b)(ii)).
As such, the Panel holds 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.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <systimax.xyz> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
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