Charter Communications Holding Company, LLC v. barry reese / Coupon Sheet
Claim Number: FA2011001920181
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Lian Ernette of Holland & Hart LLP, United States. Respondent is barry reese / Coupon Sheet (“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spectrumcableorders.com>, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 10, 2020; the Forum received payment on November 10, 2020.
On November 11, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <spectrumcableorders.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 November 12, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 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@spectrumcableorders.com. Also on November 12, 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 December 7, 2020, 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, is a telecommunications company providing TV, internet, and voice services.
Complainant has rights in the CHARTER SPECTRUM and SPECTRUM TV marks etc. (“Spectrum marks”) based upon registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <spectrumcableorders.com> domain name is confusingly similar to Complainant’s marks since it includes the SPECTRUM portion of Complainant’s marks and simply adds the generic terms “cable” and “orders” as well as the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <spectrumcableorders.com> domain name because Respondent is not commonly known by the at-issue domain name and is not authorized or permitted to use Complainant’s mark. Additionally, Respondent fails to use the domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent redirects Internet users to a site featuring pay-per-click links.
Respondent registered and uses the <spectrumcableorders.com> domain name in bad faith because Respondent offers the domain name for sale. Additionally, Respondent features hyperlinks at the domain which redirect to competing and unrelated webpages. Additionally, Respondent had actual or constructive knowledge of Complainant’s rights in the SPECTRUM marks when it registered the <spectrumcableorders.com> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the CHARTER SPECTRUM and SPECTRUM TV trademarks as well as other SPECTRUM based marks through the registration of such marks with the USPTO.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademarks in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the CHARTER SPECTRUM and SPECTRUM TV trademarks.
Respondent uses <spectrumcableorders.com> to direct internet users to a website featuring pay-per-click links to third-party webpages, and on such website offers the domain name for sale.
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 shows that it has a USPTO registration for its CHARTER SPECTRUM and SPECTRUM TV trademarks as well as other SPECTRUM centric marks. Complainant’s registration of such marks is sufficient to demonstrate Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Respondent’s <spectrumcableorders.com> domain name contains the dominant portion of Complainant’s CHARTER SPECTRUM and SPECTRUM TV trademarks (SPECTRUM), followed by the suggestive term “cableorders” with all followed by the “.com” top-level domain name. The differences between Respondent’s domain name and Complainant’s trademarks are insufficient to distinguish the <spectrumcableorders.com> domain name from such trademarks for the purposes of Policy ¶ 4(a)(i). The inclusion of the suggestive term “cableorders” in the domain name only adds to such confusion. Therefore, the Panel concludes that Respondent’s <spectrumcableorders.com> domain name is confusingly similar to a mark in which Complainant has rights. See The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) (“[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i).”); see also 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).).
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). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use any of Complainant’s trademarks 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 for the at-issue domain name identifies the domain name’s registrant as “Barry Reese / Coupon Sheet” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <spectrumcableorders.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <spectrumcableorders.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Additionally, Respondent uses the <spectrumcableorders.com> to direct internet users to its <spectrumcableorders.com> website where Respondent displays commercial hyperlinks. Respondent’s use of the confusingly similar <spectrumcableorders.com> domain name in this manner indicates neither a bona fide offering of goods or services under Policy ¶ 4 (c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶4(a)(ii).
Respondent’s <spectrumcableorders.com> domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First, Respondent offers the confusingly similar domain name for sale. Respondent generally offers to sell <spectrumcableorders.com> via a statement on its related website. Doing so suggests Respondent’s bad faith pursuant to Policy ¶ 4(b)(i). See Airbnb, Inc. v. Super Privacy Service LTD c/o Dynadot, FA 1821386 (Forum Jan. 10, 2019) (“Complainant argues that Respondent registered and uses the <airbnbb.com> domain name in bad faith by offering it for sale. The Panel agrees and finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(i).”).
Next and as mention above regarding rights and legitimate interests, Respondent uses the confusingly similar domain name and its associated website to display hyperlinks that appear to be pay-per-click links to third-party webpages. Using the confusingly similar at-issue domain name to feature pay-per-click links indicates Respondent’s bad faith registration and use of the <spectrumcableorders.com> domain name per Policy ¶ 4(b)(iv). See Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained).
Finally, Respondent registered <spectrumcableorders.com> knowing that Complainant had trademark rights in CHARTER SPECTRUM and/or SPECTRUM TV, and/or any other SPECTRUM based mark. Respondent’s prior knowledge is evident from the notoriety of instances of Complainant’s suite of SPECTRUM centric trademarks and Complainant’s longstanding use of such marks. It is thus clear that Respondent intentionally registered the at-issue domain name to improperly exploit its trademark value, rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark rights independently indicates that Respondent registered and used the <spectrumcableorders.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See 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"); see also Twentieth Century Fox Film Corporation and Fox International Channels (US), Inc. v. Daniel Pizlo / HS, FA 1596020 (Forum Jan. 27, 2015) (finding that the respondent must have had actual knowledge of the complainant and its rights in the FOX LIFE mark, where the respondent was using the disputed domain name to feature one of the complainant’s videos on its website, indicating that the respondent had acted in bad faith under Policy ¶ 4(a)(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 <spectrumcableorders.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: December 7, 2020
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