Charter Communications Holding Company, LLC v. Vinay A
Claim Number: FA1909001860702
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Madelon Lapidus of Holland & Hart LLP, Colorado, USA. Respondent is Vinay A (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spectrumbundles.org>, registered with GoDaddy.com, 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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 4, 2019; the Forum received payment on September 4, 2019.
On September 5, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <spectrumbundles.org> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.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 September 5, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 25, 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@spectrumbundles.org. Also on September 5, 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 September 27, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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, Charter Communications, is a telecommunications company in the United States serving over 26 million people. Complainant claims rights in the CHARTER SPECTRUM mark based on its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,618,726 registered Oct. 7, 2014.) Respondent’s <spectrumbundles.org> domain name is confusingly similar to Complainant’s CHARTER SPECTRUM mark because it incorporates the SPECTRUM portion of the CHARTER SPECTRUM mark and adds only the generic terms “bundles” along with a “.org” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <spectrumbundles.org> domain name because Respondent is not commonly known by the disputed domain name and is not authorized or permitted to use Complainant’s mark in any fashion. Additionally, Respondent fails to use the disputed domain names in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the disputed domain name resolves to a webpage that attempts to pass off as Complainant.
Respondent registered and uses the <spectrumbundles.org> domain name in bad faith. Respondent intentionally seeks to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Respondent has a pattern of bad faith registrations. Further, Respondent had actual knowledge of Complainant’s mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <spectrumbundles.org> 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”).
Complainant claims rights in the CHARTER SPECTRUM mark based upon registration with the USPTO. Registration with the USTPO sufficiently establishes a complainant’s rights in the mark for the purposes of Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Complainant provides copies of its registration of the mark with the USTPO. The Panel finds that Complainant has rights in the CHARTER SPECTRUM mark per Policy ¶ 4(a)(i).
Complainant argues Respondent’s <spectrumbundles.org> domain name is confusingly similar to Complainant’s CHARTER SPECTRUM mark because it incorporates the SPECTRUM portion of the mark and adds only the generic term “bundles” along with a “.org” gTLD. Omitting a portion of a mark while adding terms and a gTLD may be insufficient to defeat a finding of confusing similarity under Policy ¶ 4(a)(i). See VNY Model Management, Inc. v. Lisa Katz / Domain Protection LLC, FA 1625115 (Forum Aug. 17, 2015) (finding that Respondent’s <vnymodels.com> domain name is confusingly similar to the VNY MODEL MANAGEMENT mark under Policy ¶ 4(a)(i).); see also Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)). The Panel finds that Respondent’s disputed domain name is confusingly similar to Complainant’s CHARTER SPECTRUM mark.
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”). The Panel finds that Complainant has made a prima facie case.
Complainant argues that Respondent lacks rights and legitimate interests in the <spectrumbundles.org> domain name because Respondent is not authorized or permitted to use Complainant’s CHARTER SPECTRUM mark and is not commonly known by the disputed domain name. Where a response is lacking, relevant WHOIS information may be used to identify the respondent per Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson,FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Additionally, lack of authorization from a complainant to use its marks may be further evidence that a respondent is not commonly known by a disputed domain name. See Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) (”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 interests in respect of the at-issue domain name.”). The WHOIS information of record identifies Respondent as “Vinay A” and no information in the record shows that Respondent was authorized to use Complainant’s mark or was otherwise commonly known by the disputed domain name. This is evidence that Respondent lacks rights and legitimate interests in the <spectrumbundles.org> domain name under Policy ¶ 4(c)(ii).
Complainant argues that Respondent fails to use the <spectrumbundles.org> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent implies a connection with Complainant by passing off as Complainant on the resolving webpage. A respondent attempting to pass off as a complainant is not considered to be making a bona fide offering or legitimate noncommercial or fair use under the Policy. See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business). Complainant provides screenshots of the disputed domain name’s resolving webpage which displays the CHARTER SPECTRUM mark and purports to offer Complainant’s services along with additional language that could mislead users to believe that the website is connected with Complainant. Complainant provides a screenshot of its own webpage for comparison purposes, which displays a similar layout to the content on Respondent’s webpage. The Panel finds that Respondent makes no bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii) and Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has proved this element.
Complainant argues Respondent intentionally seeks to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of the <spectrumbundles.org> domain name. Attempting to imply a connection with a complainant for the purpose of misleading Internet users may evince bad faith under Policy ¶ 4(b)(iv). 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.”). Complainant provides screenshots of the resolving webpage which displays Complainant’s mark, purports to sell Complainant’s products, and claims to be an authorized affiliate of Complainant. Complainant also provides a screenshot of its own webpage for comparison purposes, which displays a similar layout to the content on Respondent’s webpage. The Panel finds this is evidence of bad faith under Policy ¶ 4(b)(iv).
Complainant asserts that Respondent’s bad faith is demonstrated by its actual knowledge of Complainant’s rights in the CHARTER SPECTRUM mark prior to registering the disputed domain name. Generally, a respondent’s actual knowledge of a complainant’s rights in a mark prior to registering a confusingly similar domain name may demonstrate bad faith under Policy ¶ 4(a)(iii). See iFinex 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”). Complainant asserts that Respondent’s knowledge can be inferred given its prominent use of Complainant’s mark on the resolving webpage associated with the infringing domain name. The Panel finds that Respondent registered the disputed domain name with actual knowledge and registered and uses the domain name in bad faith per Policy ¶ 4(a)(iii).
Complainant has proved this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <spectrumbundles.org> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
Dated: October 1, 2019
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