Charter Communications Holding Company, LLC v. ASHISH MIDHA
Claim Number: FA2008001908057
Complainant is Charter Communications Holding Company, LLC ("Complainant"), represented by Lian Ernette of Holland & Hart LLP, United States. Respondent is ASHISH MIDHA (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dailyspectrumdeals.com> (‘the Domain Name’), registered with GoDaddy.com, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 11, 2020; the Forum received payment on August 11, 2020.
On August 12, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <dailyspectrumdeals.com> 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 August 13, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 2, 2020 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@dailyspectrumdeals.com. Also on August 13, 2020, 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 8, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarised as follows:
The Complainant owns a number of marks including SPECTRUM including SPECTRUM INTERNET and SPECTRUM TV registered in the USA with first use recorded as 2015 for telecommunications related services.
The Domain Name, registered in 2020, is confusingly similar to the Complainant’s trade mark adding only the generic word ‘daily’ and ‘deals’ and the gTLD '.com' which are insufficient to prevent said confusing similarity.
The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by the Domain Name and is not authorised by the Complainant.
The web site attached to the Domain Name mimics the Complainant’s official web site and uses the Complainant’s SPECTRUM logo and names of the Complainant’s bundle deals prominently to suggest an affiliation with the Complainant that does not exist. This cannot be a bona fide offering of goods or services or a legitimate noncommercial fair use.
It is registration and use in bad faith capitalizing consumer confusion for profit and disrupting the Complainant’s business under Policy 4(b)(iii) and (iv). The false use of the Complainant’s Spectrum logo shows actual knowledge of the Complainant and its business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant owns a number of marks including SPECTRUM, SPECTRUM INTERNET and SPECTRUM TV, registered in the USA with first use recorded as 2015 for telecommunications related services.
The Domain Name, registered in 2020, has been used for a site offering competing services to the Complainant and using the Complainant’s logo as a masthead and the name of the Complainant’s bundle deals without authorisation.
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 Domain Name consists of the Complainant's SPECTRUM mark (which is registered in USA for telecommunication services with use recorded since 2015), the generic terms ‘daily’ and ‘deals’ and the gTLD '.com'.
Previous panels have found confusing similarity when a respondent merely adds generic terms to a Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The Panel agrees that the addition of the generic terms ‘daily’ and ‘deals’ to the Complainant's mark does not distinguish the Domain Name from the Complainant's trade mark pursuant to the Policy.
The gTLD '.com' does not serve to distinguish the Domain Name from the Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
The Complainant has not authorised the use of its mark. There is no evidence or reason to suggest the Respondent is commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 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 noncommercial fair use.
The web site attached to the Domain Name uses the Complainant’s logo as a masthead and the names of Complainant’s bundle deals so that the Respondent’s site appeared to be an official site of the Complainant. It does not make it clear that there is no connection with the Complainant. The Panel finds this use is deceptive and passing off. As such it cannot amount to the bona fide offering of goods and services. See iFinex Inc. v Yuri Heifetz/Genie-Solution, FA 1789385 (Forum July 9, 2018) (holding that the respondent’s mimicking the complainant’s web site in order to cause existing or potential customers of the Complainant’s to believe they are dealing with the complainant is prima facie evidence of the respondent’s lack of rights and legitimate interests in the disputed domain name).
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.
In the opinion of the panelist the use made of the Domain Name in relation to the Respondent’s site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant when it is not as it uses the Complainant’s logo and the names of the Complainant’s deals to offer competing telecommunications services showing that the Respondent is aware of the Complainant and its business. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating likelihood of confusion with the Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site or services on it likely to disrupt the business of the Complainant. See Allianz of AM. Corp v Bond, FA 680624 (Forum June 2, 2006)(finding bad faith registration and use where the respondent was diverting Internet users searching for the complainant to its own website).
As such, the Panelist believes 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 para 4(b)(iv) and 4(b)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dailyspectrumdeals.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: September 8, 2020
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