Charter Communications Holding Company, LLC v. Nghia Do / GENERALI LIFE VIETNAM
Claim Number: FA1905001842969
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Madelon Lapidus of Holland & Hart LLP, Colorado, US. Respondent is Nghia Do / GENERALI LIFE VIETNAM (“Respondent”), Vietnam.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spectrumtv.club>, registered with NameCheap, Inc..
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 13, 2019; the Forum received payment on May 13, 2019.
On May 14, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <spectrumtv.club> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 15, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 4, 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@spectrumtv.club. Also on May 15, 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 5, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 operates in the telecommunications industry. Complainant has rights in the SPECTRUM TV mark based upon its registration of the mark with the USPTO (e.g., Reg. No. 5,420,855, registered March 13, 2018). See Compl. Ex. 3. Respondent’s <spectrumtv.club> domain name is identical and/or confusingly similar to Complainant’s SPECTRUM TV mark because it wholly incorporates Complainant’s SPECTRUM TV mark, and merely adds the “.club” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <spectrumtv.club> domain name. Respondent is not authorized to use Complainant’s SPECTRUM TV mark and is not commonly known by the disputed domain name. See Amend. Compl. Ex. 1. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use by using the disputed domain name to pass off as complainant to offer competing goods or services. See Compl. Ex. 5 and 6.
Respondent registered and uses the <spectrumtv.club> domain name in bad faith. Respondent attempts to attract, for commercial gain, users to the disputed domain name where Respondent attempts to pass off as Complainant to offer competing services. See Compl. Ex. 5 and 6. Finally, Respondent had actual knowledge of Complainant’s SPECTRUM TV mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered the disputed domain name on March 6, 2019
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark; that Respondent has no rights or legitimate interests in or to the disputed domain name; and that Respondent has engaged in bad faith use and registration of the disputed domain name.
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 Panel finds that the disputed domain name, <spectrumtv.club> is confusingly similar to Complainant’s valid and subsisting trademark, SPECTRUM TV. Complainant has adequately established it rights and interests in and to this trademark. Respondent arrives at the disputed domain name by merely appending the g TLD “.club” to Complainant’s trademark after deleting a space. This is insufficient to distinguish the dispute domain name from Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent lacks any rights or legitimate interests in or to the disputed domain name. Respondent has no right, permission or license to register the disputed domain name. Respondent is not commonly known by the dispute domain name. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Respondent apparently uses the disputed domain name to pass itself off as Complainant to offer competing goods or services. See Compl. Ex. 5 and 6.
As such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name.
Further, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name. Respondent registered and uses the <spectrumtv.club> domain name in bad faith because Respondent attempts to attract, for commercial gain, users to the disputed domain name where Respondent attempts to pass itself off as Complainant to offer competing services. See Compl. Ex. 5 and 6. Use of a disputed domain name to mimic a complainant’s website and reference a complainant’s products to offer competitive or counterfeit products is evidence of bad faith registration and use. See 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.”).
Thus, the Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iv).
Finally, it appears that Respondent had actual knowledge of Complainant’s prior rights and interests in and to the trademark SPECTRUM TV. Complainant asserts that Respondent had actual and/or knowledge of Complainant’s rights in the SPECTRUM TV mark as the result of Complainant’s extensive use of the mark predating the date on which respondent registered the <spectrumtv.club> domain name and Respondent’s use of the mark on the resolving webpage. See Amend. Compl. Ex. 5 and 6. Use of a mark on a resolving webpage may demonstrate that a respondent had actual knowledge of a complainant’s rights in a mark at the time of registration, thus constituting bad faith. Finex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the SPECTRUM TV mark under Policy ¶ 4(a)(iii).
As such, the Panel finds that Respondent engaged in bad faith use and registration of 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 <spectrumtv.club> domain name be TRANSFERRED from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: June 7, 2019
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