Charter Communications Holding Company, LLC v. Anonymize, Inc.
Claim Number: FA2106001952245
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Lian Ernette of Holland & Hart LLP, Colorado, USA. Respondent is Anonymize, Inc. (“Respondent”), Washington, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <specyrum.net>, registered with Epik 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 22, 2021; the Forum received payment on June 22, 2021.
On June 23, 2021, Epik Inc. confirmed by e-mail to the Forum that the <specyrum.net> domain name is registered with Epik Inc. and that Respondent is the current registrant of the name. Epik Inc. has verified that Respondent is bound by the Epik 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 June 24, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 14, 2021 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@specyrum.net. Also on June 24, 2021, 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 July 20, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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, states that it is a telecommunications company providing services to more than 26 million customers in the United States. With 94,000 employees and service in 41 states, Complainant considers itself America’s fastest-growing TV, internet, and voice company. Since at least as early as 2014, Complainant has used the SPECTRUM mark in connection with cable television, internet, and related telecommunications services. Complainant has rights in the SPECTRUM formative marks, in particular CHARTER SPECTRUM and SPECTRUM GUIDE, based on registration of the marks in the United States in, respectively, 2014 and May 10, 2016. Complainant also owns the domain <www.spectrum.net>.
Complainant alleges that the disputed domain name is confusingly similar to the dominant SPECTRUM portion of its marks since it consists of a misspelling of SPECTRUM (the letter “T” is replaced with the letter “Y” which is adjacent to “T” on US keyboards), merely adding the “.net” generic top level domain (“gTLD”).
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized Respondent to use its marks. Additionally, Respondent does not use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use as the resolving website features competing pay-per-click advertisements. Furthermore, the disputed domain name constitutes typosquatting.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent derives revenue from pay-per-click advertisements. Respondent had actual notice of Complainant’s rights in the SPECTRUM marks based on Complainant’s long-term use of the mark. Additionally, Respondent engages in typosquatting.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns various marks whose dominant portion is SPECTRUM, with rights dating back to 2014, and uses them to market telecommunication services.
The disputed domain name was registered on November 30, 2016.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain name to resolve to a web site that displays pay-per-click advertising links for competing services.
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 disputed domain name consists of a misspelling of SPECTRUM, which is the dominant portion of Complainant’s marks (the letter “T” is replaced with the letter “Y” which is adjacent to “T” on US keyboards), merely adding the “.net” generic top level domain (“gTLD”). Misspelling a mark by replacing a letter does not negate any confusing similarity between a disputed domain name and a mark under Policy ¶ 4(a)(i). See Omaha Steaks International, Inc. v. DN Manager / Whois-Privacy.Net Ltd, FA 1610122 (Forum July 9, 2015) (finding, “The domain name differs from the mark only in that the domain name substitutes the letter ‘a’ in the word ‘steak’ with the letter ‘c’ and adds the generic Top Level Domain (‘gTLD’) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”). Thus, the Panel finds that the disputed domain name is confusingly similar to Complainant’s marks under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its marks. Respondent is not commonly known by the disputed domain name: when no response is submitted, WHOIS information can be used to show that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS information lists “Anonymize, Inc.” as the registrant. Thus, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website features competing pay-per-click advertisements. Use of a disputed domain name to host competing advertisements or pay-per-click hyperlinks does not constitute a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”). Thus, the Panel finds that Respondent is not using the disputed domain name to make a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
Furthermore, the disputed domain name constitutes typosquatting (the letter “T” is replaced with the letter “Y” in the dominant SPECTRUM portion of Complainant’s marks). Under Policy ¶ 4(a)(ii), the purposeful misspelling of a mark in a disputed domain name constitutes typosquatting and indicates a respondent lacks rights or legitimate interests in the domain. See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”).
For all the above reasons, the Panel finds that Respondent lacks rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of the dominant portion of Complainant’s marks. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving website displays pay-per-click advertising links to competing services. This can demonstrate bad faith per Policy ¶¶ 4(b)(iii) and/or 4(b)(iv). See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Forum Dec. 12, 2007) (“Respondent currently utilizes the disputed domain name, <usaa-insurance.net>, to resolve to a website featuring links to third-party competitors of Complainant. The Panel finds such use establishes Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii).”); see also Capital One Financial Corp. v. Above.com Domain Privacy / Above.com Domain Privacy, FA1501001598657 (Forum Feb. 20, 2015) (“This Panel agrees that Respondent’s use as shown in Exhibits C-D illustrates that Respondent here seeks commercial gain through a likelihood of confusion, as competing hyperlinks have been found to establish evidence of intent to seek commercial gain through referral fees, and thus demonstrates bad faith registration under Policy ¶ 4(b)(iv).”). Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶¶ 4(b)(iii) and/or 4(b)(iv).
Further, also as already noted, Respondent engages in typosquatting. Under Policy ¶ 4(a)(iii), typosquatting is itself evidence of bad faith registration and use. See Under Armour, Inc. v. JEFF RANDALL, FA1410001585022 (Forum Nov. 18, 2014) (finding that the respondent’s <unerarmour.com> domain name constitutes typosquatting of the complainant’s UNDER ARMOUR mark, which is evidence of bad faith pursuant to Policy ¶ 4(a)(iii)). Therefore, if the Panel finds bad faith registration and use on this ground also.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <specyrum.net> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 20, 2021
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