Charter Communications Holding Company, LLC v. Ammar Saleem
Claim Number: FA1904001841022
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Madelon Lapidus of Holland & Hart LLP, Colorado, USA. Respondent is Ammar Saleem (“Respondent”), Pakistan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <charterspectrumdeal.com>, registered with Google LLC.
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 the Forum electronically on April 29, 2019; the Forum received payment on April 29, 2019.
On April 30, 2019, Google LLC confirmed by e-mail to the Forum that the <charterspectrumdeal.com> domain name is registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google 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 May 2, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 22, 2019 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@charterspectrumdeal.com. Also on May 2, 2019, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On May 23, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the 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
Complainant contends as follows:
Complainant, Charter Communications Holding Company, LLC, uses their mark CHARTER SPECTRUM in connection with telecommunications.
Complainant has rights in the CHARTER SPECTRUM mark based on registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <charterspectrumdeal.com> domain name is confusingly similar to Complainant’s CHARTER SPECTRUM mark, as it incorporates the mark in its entirety, merely adding the generic term “deal” and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the <charterspectrumdeal.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the CHARTER SPECTRUM mark in any manner. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent is using the disputed domain name to pass off as Complainant.
Respondent registered and is using the <charterspectrumdeal.com> domain name in bad faith. Respondent seeks to attract internet users to its <charterspectrumdeal.com> website by creating confusion with Complainant marks as to the website sponsorship and/or affiliation. Respondent is using the at-issue domain name to pass off as Complainant in order to sell unauthorized versions of Complainant’s services and/or to compete with Complainant. Further, Respondent had actual knowledge of Complainant’s rights in the CHARTER SPECTRUM mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the CHARTER SPECTRUM mark through its registration of such mark with the USPTO.
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 name after Complainant acquired rights in the CHARTER SPECTRUM trademark.
Respondent uses the <charterspectrumdeal.com>domain name to pass itself off as Complainant.
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’s ownership of a USPTO registration for the CHARTER SPECTRUM trademark is sufficient to demonstrate Complainant’s rights in CHARTER SPECTRUM for the purposes of 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 <charterspectrumdeal.com> domain name contains Complainant’s CHARTER SPECTRUM trademark less its space, followed by the suggestive term “deal,” and all followed by the top-level domain name “.com.” The slight differences between Complainant’s trademark and Respondent’s domain name are insufficient to distinguish one from the other for the purposes of the Policy. Therefore, the Panel finds that Respondent’s <charterspectrumdeal.com> domain name is confusingly similar to Complainant’s CHARTER SPECTRUM trademark under Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy).
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).
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 legitimate interests in respect of the at-issue domain name.
The WHOIS information for the at-issue domain name discloses “Ammar Saleem” to be the <charterspectrumdeal.com> domain name’s registrant. There is nothing in the record that otherwise suggests Respondent is commonly known by the <charterspectrumdeal.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also, Instron Corp. v. Kaner, FA 768859 (Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the disputed domain names because the WHOIS information listed “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't” as the registrant and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute).
Furthermore, Respondent’s confusingly similar domain name addresses a website that mimics Complainant’s official website. Respondent is apparently using the domain name and website to pass itself off as Complainant so that it might pretend to be an authorized vendor of Complainant’s services, when it is not. Respondent’s use of the at-issue domain name in this manner shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Dell Inc. v. Devesh Tyagi, FA 1785301 (Forum June 2, 2018) (“Respondent replicates Complainant’s website and displays Complainant’s products. The Panel finds that this use is not a bona fide offering of goods or services under Policy ¶¶ 4(c)(i) & (iii).”).
Given the forgoing, Complainant conclusively demonstrates Respondent’s lack of rights and lack of interests in the <charterspectrumdeal.com> domain name.
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, Policy ¶ 4(b) bad faith circumstances are present and there is additional non-Policy ¶ 4(b) evidence from which the Panel may independently conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First and as mentioned above regarding rights and interests, Respondent uses the <charterspectrumdeal.com> domain name to pass itself off as Complainant so that it might appear to be a bona fide provider of Complainant’s services. By using the confusingly similar domain name to pass itself off as Complainant and thereby usurping the goodwill inherent in Complainant’s CHARTER SPECTRUM mark, Respondent shows that it has registered and uses the domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See Charter Communications Holding Company, LLC v. Danish Michael, FA 1805686 (Forum Oct. 5, 2018) (“Respondent attempts to commercially gain by passing off as Complainant and offering competing goods and services. Use of a domain name to pass off as complainant and offer competing goods and services is evidence of bad faith under Policy ¶ 4(b)(iv).”); see also, I Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”).
Additionally, Respondent registered the <charterspectrumdeal.com> domain name knowing that Complainant had trademark rights in the CHARTER SPECTRUM mark. Respondent’s prior knowledge of Complainant’s trademark is evident from the notoriety of Complainant’s trademark and Respondent’s use of the confusingly similar domain name to address an unauthorized copy of Complainant’s official website. Respondent also brashly displays Complainant’s SPECTRUM TRIPLE PLAY mark and SPECTRUM AUTHORIZED RETAILER logo mark on its fraudulent website. Respondent’s clear knowledge of Complainant's trademark in advance of registering the <charterspectrumdeal.com> domain name shows that Respondent registered and used <charterspectrumdeal.com> in bad faith pursuant to Policy ¶ 4(a)(iii). See Charter Communications Holding Company v. MIZHAR salem, FA 1774836 (Forum Apr. 4, 2018) (finding bad faith in registration of <charterspectrumonline.com> because “[a]ctual knowledge of a complainant’s rights in a mark prior to registering a confusingly similar domain name can evince bad faith under Policy ¶ 4(a)(iii).”); see also, 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 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 <charterspectrumdeal.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: May 23, 2019
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