Charter Communications Holding Company, LLC v. lin yanxiao
Claim Number: FA2106001952246
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Lian Ernette of Holland & Hart LLP, Colorado, USA. Respondent is lin yanxiao (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <cspectrum.net>, <swpectrum.net>, <spectrup.net>, and <spectruml.net>, registered with Dynadot, LLC.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 22, 2021; the Forum received payment on June 22, 2021.
On June 24, 2021, Dynadot, LLC confirmed by e-mail to the Forum that the <cspectrum.net>, <swpectrum.net>, <spectrup.net>, and <spectruml.net> domain names are registered with Dynadot, LLC and that Respondent is the current registrant of the names. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 June 28, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 19, 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@cspectrum.net, postmaster@swpectrum.net, postmaster@spectrup.net, postmaster@spectruml.net. Also on June 28, 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 22, 2021, 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant, Charter Communications Holdings, is a telecommunications company providing services to over 26 million customers in the United States. Complainant maintains registration of its SPECTRUM mark with the United States Patent and Trademark Office (“USPTO”). The disputed domain names, <cspectrum.net>, <swpectrum.net>, <spectrup.net>, and <spectruml.net> (hereafter collectively as “disputed domain names”), are identical or confusingly similar to Complainant’s SPECTRUM mark because they incorporate Complainant’s SPECTRUM mark, add or change a letter, and add the “.net” generic top-level domain (“gTLD”) to form a domain name.
Respondent does not have any rights or legitimate interests in the disputed domain names because Respondent is not commonly known by the disputed domain names nor has Respondent been authorized to use Complainant’s SPECTRUM mark. Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use because Respondent is using the disputed domain names to host a website displaying pay-per-click advertisements to websites that feature unrelated and competing content.
Respondent registered and uses the disputed domain names in bad faith because Respondent is offering the Disputed Domain Names for sale. Respondent has previously registered multiple domain names containing famous marks. Additionally, Respondent uses the disputed domain names to host pay-per-click advertisements. Furthermore, Respondent’s bad faith is evidenced through typosquatting
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, based upon the uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <cspectrum.net>, <swpectrum.net>, <spectrup.net>, and <spectruml.net> domain names.
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”).
Complaint claims that the disputed domain names are confusingly similar to Complainant’s SPECTRUM mark because they incorporate Complainant’s SPECTRUM mark, adding or changing a letter, and adding the “.net” gTLD to form a domain name. A domain name may be found to be identical or confusingly similar, under Policy ¶ 4(a)(i), despite the addition or changing of letters in a complainant’s mark. See Bank of America Corporation v. Above.com Domain Privacy, FA 1629452 (Forum Aug. 18, 2015) (finding that the <blankofamerica.com> domain name contains the entire BANK OF AMERICA mark and merely adds the gTLD ‘.com’ and the letter ‘l’ to create a common misspelling of the word ‘bank.’); see also 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.”). The letters added to the disputed domain names are either the letter “C”, the letter “W”, or the letter “L”. In the case of the <spectrup.net> domain name, the letter “M” and the end of Complainant’s SPECTRUM mark is replaced with the letter “P”. The Panel finds that the disputed domain names are confusingly similar under Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names 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 does not have any rights or legitimate interests in the disputed domain names because Respondent is not commonly known by the disputed domain names nor has Respondent received authorization to use Complainant’s SPECTRUM mark. Evidence of a respondent not being commonly known by a domain name, under Policy ¶ 4(c)(ii), may be found where a the identifying WHOIS information is unrelated to the domain name and where a respondent lacks authorization to use a complainant’s mark. See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sept. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”). WHOIS information for each of the disputed domain names list the registrant as “lin yanxiao”. See Registrar Email Verification. Complainant further asserts that Respondent is not affiliated with Complainant nor is Respondent authorized to use the SPECTRUM mark. The Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).
Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use because Respondent is using the disputed domain names to host pay-per-click advertisements that feature related and competing content. Use of a domain name to host pay-per-click advertisements that compete with a complainant may be evidence of a domain name not being used in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Forum July 14, 2008) (holding that the respondent had not demonstrated a bona fide offering of goods or services or a legitimate noncommercial or fair use when “the website resolving from the disputed domain name displays links to travel products and services, which directly compete with Complainant’s business”). The resolving websites display links that advertise internet services, including for businesses, phone services, and other related services. These are the same services that Complainant provides to its customers. Users clicking on the links are redirected to Complainant’s own website, websites of competitors, or to services offered by Complainant. The Panel finds that the disputed domain names are not being used in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii) and Respondent has no rights or legitimate interests in respect of the domain names.
Complainant has proved this element.
Complainant argues that Respondent registered and uses the disputed domain names in bad faith because Respondent is offering the disputed domain names for sale. A general offer of sale may be evidence of a domain name being registered and used in bad faith under Policy ¶ 4(b)(i). See Capital One Financial Corp. v. haimin xu, FA 1819364 (Forum Jan. 8, 2019) (“A general offer to sell a domain name can be evidence the respondent intended to make such an offer at the time it registered the name, supporting a finding of bad faith per Policy ¶ 4(b)(i).”). A link at the bottom of the website at each of the Disputed Domain Names list a link that states “buy now [domain name] at Escrow.com”. When the link is clicked, users are redirected to a webpage that allows users to submit their offers to buy any of the disputed domain names. This is evidence of bad faith under Policy ¶ 4(b)(i).
An additional argument by Complainant is that Respondent registered and uses the disputed domain names in bad faith because Respondent has a pattern of registering multiple domain names with famous marks. Previous registration of domain names containing famous marks may be an indication of bad faith registration and use under Policy ¶ 4(b)(ii). See Philip Morris Inc. v. r9.net, D2003-0004 (WIPO Feb. 28, 2003) (finding that the respondent’s previous registration of domain names such as <pillsbury.net>, <schlitz.net>, <biltmore.net> and <honeywell.net> and subsequent registration of the disputed <marlboro.com> domain name evidenced bad faith registration and use pursuant to Policy ¶ 4(b)(ii)). Utilizing the email address obtained from the WHOIS information, Complainant found 704 domain names, of which Complainant provides a list of ten domain names utilizing the famous marks of nine third-party entities, including Airbnb, American Express, Pinterest, Nordstrom, and Walmart. This is evidence of bad faith under Policy ¶ 4(b)(ii).
Complainant also argues that Respondent registered and uses the disputed domain names in bad faith because Respondent uses them to host pay-per-click links. Use of a domain name to host pay-per-click advertisements to competing services is evidence of bad faith under Policy ¶¶ 4(b)(iii) and (iv). See Transamerica Corporation v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1798316 (Forum Aug. 20, 2018) (“Respondent's use of the domain name to link to competitors of Complainant, presumably generating pay-per-click or referral fees for Respondent, is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv).”). Respondent uses the disputed domain names to feature pay-per-click advertisements that advertise and redirect users to either Complainant’s own website or to competitors of Complainant. This is evidence of bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Complainant lastly argues Respondent registered and uses the disputed domain names in bad faith because of Respondent’s typosquatting activities. Typosquatting itself is indicative of bad faith registration and use. See Cost Plus Management Services, Inc. v. xushuaiwei, FA 1800036 (Forum Sept. 7, 2018) (“Typosquatting itself is evidence of relevant bad faith registration and use.”). Each of the disputed domain names incorporate some form of Complainant’s SPECTRUM mark while adding or changing letters, misspelling Complainant’s SPECTRUM mark. The Panel finds that Respondent engaged in typosquatting and registered and uses the disputed domain names in bad faith under Policy ¶ 4(a)(iii).
Complainant has proved this element.
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 <cspectrum.net>, <swpectrum.net>, <spectrup.net>, and <spectruml.net> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
July 28, 2021
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page