Westmore · UDRP DecisionCoxiinc.com
The Panel ordered transfer of <coxiinc.com> to Cox Enterprises, Inc. It found the domain confusingly similar to the Complainants’ COX marks, that the Respondent lacked rights or legitimate interests, and that the domain was registered and used in bad faith. The decisive evidence included the domain’s one-letter variation from the Complainant’s <coxinc.com> corporate domain and its use for email impersonating Cox Enterprises’ President and CEO, notwithstanding that it did not resolve to an active website.
The timeline behind coxiinc.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
This decision illustrates that a domain need not host an active website to constitute bad-faith use. Use of a close typographical variation of a company’s corporate email domain for executive impersonation can supply direct evidence of targeting and bad faith. It also shows that consolidation of related complainants may be accepted where their grievance is common and consolidation is equitable and efficient, while emphasizing that the relationship should be documented in the complaint.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Cox Communications, Inc. and Cox Enterprises, Inc. v. Domains By Proxy, LLC / Ernest Medina Case No. D2016-0652 1. The Parties Complainant is Cox Communications, Inc. of Atlanta, Georgia, United States of America (“United States”) and Cox Enterprises, Inc. of Atlanta, Georgia, United States, represented by Kilpatrick Townsend & Stockton LLP, United States. Respondent is Domains By Proxy, LLC of Scottsdale, Arizona, United States / Ernest Medina of Sterling, Virginia, United States. 2. The Domain Name and Registrar The disputed domain name <coxiinc.com> (the “Domain Name”) is registered with Wild West Domains, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 4, 2016. On April 5, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On April 5, 2016, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on April 6, 2016 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on April 8, 2016. The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”). In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on April 11, 2016. In accordance with the Rules, paragraph 5, the due date for Response was May 1, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on May 2, 2016. The Center appointed Martin Schwimmer as the sole panelist in this matter on May 6, 2016. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background Complainants Cox Communications, Inc., a Delaware, United States corporation, and Cox Enterprises, Inc., a Delaware, United States corporation, (collectively, “Complainant”) own and use a COX-family of trademarks in the general field of telecommunications, including cable broadcasting and television programming. Complainant has used the COX trademark for over 35 years and has owned registrations for the COX trademark since at least 1996. It is one of the largest cable television providers in the country. Cox Enterprises, Inc. also maintains a website at “www.coxinc.com”. The Domain Name was registered on March 22, 2016 and does not direct to an active website. Respondent uses the Domain Name, however, to send emails to Complainant’s employees from an email address purporting to be that of Cox Enterprise’s President and CEO. 5. Parties’ Contentions A. Complainant Complainant alleges as follows: Complainant owns numerous United States registrations covering the well-known COX trademark and COX-formative trademarks ( i.e. , COX BUSINESS, COX MEDIA, COX WIFI). It is the one of the largest cable television providers in the country. Complainant Cox Enterprises, Inc. maintains a website at “ www.coxinc.com ” and uses the corresponding domain name for its corporate email. Respondent is not affiliated with, or approved or sponsored by Complainant. The Domain Name does not resolve to a website. Respondent allegedly uses the Domain Name in an attempt to harvest personal information from Complainant’s employees through the use of an email address purporting to be that of Cox Enterprises, Inc.’s President and CEO. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings 6.1. Preliminary Issue: Consolidation As a preliminary point, the Panel notes that the Complaint was filed in the name of two entities, Cox Communications, Inc. and Cox Enterprises, Inc. The Complaint alleges that Cox Enterprises, Inc. is the parent of Cox Communications, Inc., without documentation. However, public information supports the parent / subsidiary relationship. Additionally, certain of the trademark registrations identified in the Complaint are in the name of Cox Communications, Inc. and some are in the name of Cox Enterprises, Inc. Furthermore, both Complainants make public use of the COX trademark. The Panel notes that Cox Enterprises, Inc. puts itself forth as a group of companies representing a single source of origin. The Panel states in passing that these Complainants’ situation satisfies the criteria for consolidation (namely that Respondent’s actions create a common grievance, its conduct affects both Complainants and that is equitable and efficient to have a single proceeding (see paragraph 4.16 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions , Second Edition (“WIPO Overview 2.0”)). The Panel notes that the best practice is for complainants to anticipate this issue and ensure that the complaint provides the information necessary to allow a panel to make this determination. 6.2. Substantive Issues A. Identical or Confusingly Similar Complainant has provided voluminous evidence of use and registration of the COX trademark and a family of COX-formative marks. Respondent’s Domain Name is <coxiinc.com>. The Panel will disregard the “iinc”-string, noting that “coxiinc” does not appear to create a recognizable name or word; “iinc” appears to be a typo for the common corporate indicator “Inc”; the Google search engine defaults to searching for “Cox Inc” when “coxiinc” is entered as a search term; and, most relevant here, Complainant has shown that its corporate website is “www.coxinc.com”. The addition of a term to Complainant’s trademark exacerbates confusion if Complainant uses that additional term or is associated with that term as well. See The American Automobile Association, Inc. v. Pablo Palermo , WIPO Case No. D2009-1742 (ordering transfer of <aaatravelreviews.com> due to, inter alia , the term “reviews” being “specifically associated with the Complainant’s area of business”). Furthermore, it is standard practice by UDRP panels to disregard the generic Top-Level Domain (“gTLD”) suffix “.com”, which does little if any to change the connotation of the second-level name. Therefore, the Panel agrees with Complainant that the Domain Name is confusingly similar to Complainant’s trademarks. B. Rights or Legitimate Interests The second ground to be demonstrated by Complainant, according to the provisions of the Policy, is Respondent’s absence of any rights or legitimate interests in the Domain Name, per paragraph 4(c) of the Policy. Previous UDRP panels have consistently held that it is sufficient for a complainant to prove a prima facie case that the respondent does not hold rights or legitimate interests in the domain name (see Croatia Airlines d.d. v. Modern Empire Internet Ltd. , WIPO Case No. D2003-0455 and Belupo d.d. v. WACHEM d.o.o. , WIPO Case No. D2004-0110 ). Once a prima facie case is shown, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating its rights or legitimate interests in the disputed domain name. The Panel is satisfied that Respondent has no connection or affiliation with Complainant and has not received any license or consent to use the trademark in a domain name or in any other manner. Complainant alleges that there is no such connection here. The Panel confirms there is no evidence of legitimate noncommercial or fair use. In addition, Respondent has not submitted any reply to Complainant’s contentions. Therefore, in light of Complainant’s prima facie case, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name. C. Registered and Used in Bad Faith The Panel finds that Complainant’s COX trademark is well-known. Complainant has submitted evidence that its mark is sufficiently distinctive and well-known such that, coupled with the absence of any other evidence in the record to the contrary, it is fair to presume that Respondent registered the Domain Name with prior knowledge of Complainant’s rights. This presumption is also supported by the fact that Complainant’s corporate website at “www.coxinc.com” is a single letter away from the Domain Name. Additionally, Complainant provided evidence that its employees received emails that appear to have been sent using, inter alia , an email address intended to seem as originating with Cox Enterprises’ President and CEO, “[…]@coxiinc.com, leaving no doubt as to whether Respondent has targeted Complainant. In these circumstances, the fact that the Domain Name does not resolve to an active website does not prevent the Panel from finding use in bad faith. Furthermore, the Panel may also make negative inferences arising from Respondent’s failure to respond. See, e.g. , Sony Kabushiki Kaisha (also trading as Sony Corporation) v. Inja, Kil , WIPO Case No. D2000-1409 . The Panel finds that Complainant has established that the Domain Name was registered and is being used in bad faith, as outlined in paragraph 4(a)(iii) of the Policy. 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <coxiinc.com> be transferred to the Complainant Cox Enterprises, Inc. Martin Schwimmer Sole Panelist Date: May 20, 2016
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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