DECISION

 

Mediacom Communications Corporation v. beats

Claim Number: FA2402002082274

 

PARTIES

Complainant is Mediacom Communications Corporation ("Complainant"), represented by Robert M. Wasnofski,Jr. of Dentons US LLP, Illinois, USA. Respondent is beats ("Respondent"), Republic of Korea.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <mediacombo.com> ('the Domain Name'), registered with Megazone Corp., Dba Hosting.Kr.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Dawn Osborne as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on February 2, 2024; Forum received payment on February 4, 2024.

 

On March 13, 2024, Megazone Corp., Dba Hosting.Kr confirmed by e-mail to Forum that the <mediacombo.com> Domain Name is registered with Megazone Corp., Dba Hosting.Kr and that Respondent is the current registrant of the name. Megazone Corp., Dba Hosting.Kr has verified that Respondent is bound by the Megazone Corp., Dba Hosting.Kr 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 14, 2024, Forum served the Complaint and all Annexes, including a Korean and English Written Notice of the Complaint, setting a deadline of April 3, 2024 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@mediacombo.com. Also on March 14, 2024, the Korean and English 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 in Korean and English.

 

On April 4, 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.

 

RELIEF SOUGHT

Complainant requests that the Domain Name be transferred from Respondent to Complainant.

 

PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING

Bearing in mind that the Domain Name is in English and points to a commercial pay-per-click site in English pursuant to UDRP Rule 11(a) the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language and the Panel decides that the proceedings should be in English.

 

PARTIES' CONTENTIONS

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 2014 is confusingly similar to the Complainant's mark adding only the letters 'b' and 'o' 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 competing pay-per-click links to third party commercial 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.

 

The Respondent has been the subject of a previous adverse decision under the UDRP for registering multiple domain names containing the Complainant's mark.

 

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

 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 2014 has been used for competing pay-per-click links to third party commercial sites. The Respondent has been the subject of a previous adverse decision under the UDRP for registering multiple domain names containing the Complainant's mark.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

The Domain Name in this Complaint combines the Complainant's MEDIACOM mark (registered, inter alia, in the USA for cable services with first use recorded as 1995) with the letters 'b' and 'o' and the gTLD .com.

 

Adding random letters and a TLD to a mark does not prevent confusion between a resultant domain name and that mark. See Bittrex, Inc. v. Sergey Valerievich Kireev / Kireev, FA 1784651 (Forum June 5, 2018) (holding that the domain name consists of the BITTREX mark and adds "the letters 'btc' and the gTLD .com which do not distinguish the Domain Name from Complainant's mark."). Accordingly the Panel holds that the addition of the letters 'b' and 'o' and the gTLD 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, FA 1574905 (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 use is commercial, so cannot be legitimate non commercial fair use.

 

The Respondent has used the Domain Name for competing pay-per-click links not connected with the Complainant. It does not make it clear that there is no commercial connection with the Complainant. McGuireWoods LLP v Mykhailo Loginov/Loginov Enterprises doo, FA 1584837 (Forum Jan. 22, 2015) ("The Panel finds Respondent's use of the disputed domain names to feature parked hyperlinks containing links in competition with the Complainant .. is not a bona fide offering of goods or services pursuant to 4( c ) (i) and it is not a legitimate non commercial or fair use pursuant to Policy 4 (b)(iii).").

 

The Respondent has not answered this Complaint or rebutted the prima facie 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 competing pay-per-click links indicates bad faith being disruptive of the Complainant's business and diverting customers for commercial gain and also offering competing services indicates actual knowledge of the Complainant and its business. See American Council on Education and GED Testing Service LLC v. Anthony Williams, FA 1760954 (Forum Jan. 8, 2018) ("Respondent's hosting of links to Complainant's competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy 4(b)(iii)"); see also Capital One Financial Corp. v. DN Manager / Whois-Privacy.Net Ltd, FA 1615034 (Forum June 4, 2015) (holding that the respondent's use of the <capitaloneonebank.com> domain name to display links to the complainant's competitors, such as Bank of America, Visa, Chase and American Express constituted bad faith pursuant to Policy 4(b)(iv)). See also University of Rochester v. Park HyungJin, FA 1587458 (Forum Dec. 9, 2014) (where the Panel inferred Respondent's actual knowledge based on Respondent's use of the domain name to promote links related to the same field as where Complainant's mark is used).

 

The Panel also notes the adverse decision against the Respondent in another case involving the Complainant's mark indicating a pattern of bad faith activity. See Twentieth Century Fox Film Corporation v. oranges arecool XD / orangesarecool.com, FA 1558045 (Forum July 10, 2014) (finding that the prior adverse UDRP history was evidence of bad faith registration and use of the domain names 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 under Paragraphs 4(b)(ii), (iii) and (iv).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <mediacombo.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Dawn Osborne, Panelist

Dated: April 4, 2024