Charter Communications Holding Company, LLC v. lin yanxiao
Claim Number: FA2106001952247
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Lian Ernette of Holland & Hart LLP, Colorado, USA. Respondent is lin yanxiao (“Respondent”), International.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spectrumj.net>, (‘the Domain Name’) registered with Dynadot, 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 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 <spectrumj.net> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. 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 25, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 15, 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@spectrumj.net. Also on June 25, 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 21, 2021 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 owns several trademarks containing SPECTRUM registered in the USA with first use recorded as 2014 for cable television and related services.
The Domain Name registered in 2021 is confusingly similar to the Complainant’s SPECTRUM marks adding only the single letter ‘j’ and the gTLD “.net” which do not prevent said confusing similarity.
The Respondent does not have any rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The Domain Name has been used for competing pay per click links and has also been offered for sale neither of which is a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is registration and use in bad faith and shows actual knowledge of the Complainant as the pay per clicks also point to the Complainant itself.
Typosquatting is also an indication of a lack of rights or legitimate interests and an indication of bad faith per se. Respondent has also demonstrated bad faith by engaging in a pattern of conduct of registering multiple domain names that incorporate misspellings of third-party corporate marks.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant owns several trademarks containing SPECTRUM registered in the USA with first use recorded as 2014 for cable television and related services.
The Domain Name registered in 2021 has been used for competing pay per click links. The Respondent owns a large number of domain names containing the trademarks of third parties and/or typosquatting versions thereof.
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 includes the Complainant's SPECTRUM mark (which is incorporated in its registrations in the USA for telecommunication services with first use recorded as 2014), the single letter ‘j’ and the gTLD “.net”.
The addition of a single letter does not prevent of using similarity between a trade mark and a domain name. 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.’). The Panel agrees that the addition of the single letter ‘j’ to the Complainant's mark does not distinguish the Domain Name from the Complainant's trade mark pursuant to the Policy.
The gTLD “.net” does not serve to distinguish the Domain Name from the SPECTRUM 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.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 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 of the Domain Name is commercial so it is not legitimate noncommercial fair use.
The Respondent has used the site attached to the Domain Name to link to third party businesses that compete with the Complainant and the Complainant itself. He does not make it clear that there is no commercial connection with the Complainant. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services or a legitimate noncommercial or fair use. See Ashley Furniture Industries Inc. v. domain admin /private registrations aitken Gesellschaft, FA 1506001626253 (Forum July 29, 2015) (linking to pay per click links does not amount to a bona fide offering of goods and services or a legitimate noncommercial fair use).
The Domain Name appears to be a typosquatting registration and has been offered for sale for a minimum of $1000. Typosquatting and offering a domain name for sale are also indicative of a lack of rights or legitimate interests. 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).”); see also 3M Company v. Kabir S Rawat, FA 1725052 (Forum May 9, 2017) (holding that “a general offer for sale… provides additional evidence that Respondent lacks rights and legitimate interests” in a 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.
Registration and Use in Bad Faith
The Respondent has not answered this Complaint or explained why he should be allowed to register a domain name containing the Complainant’s mark and point it to links to the Complainant’s competitors and offer it for sale for in excess of out of pocket costs.
In the opinion of the Panelist the use made of the Domain Name in relation to the site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it links to competing services under a domain name containing the Complainant’s mark. The use for this purpose and also reference to the Complainant itself shows the Respondent is aware of the Complainant and its business, services and rights. 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”). Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating a likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the web site or services offered on it likely to disrupt the business of the Complainant. See Health Republic Insurance Company v. Above.comLegal, FA 1506001622088 (Forum July 10, 2015) re diversion to pay per click links.
Typosquatting is an indication of bad faith per se. 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.”).
Further the Respondent owns a number of domain names containing the marks of third parties or typosquatting versions thereof suggesting a pattern of cybersquatting activity. 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)).
Further the Domain Name has been offered for sale for a minimum of $1000, a sum in excess of likely out of pocket costs for registration of the Domain Name also indicating bad faith. See loanDepot.com, LLC v. Expired domain caught by auction winner.***Maybe for sale on Dynadot Marketplace*** c/o Dynadot, FA 1786281 (Forum June 8, 2018) (“Complainant shows that Respondent offers the disputed domain name for sale for $950, no doubt above its out-of-pocket costs. The Panel finds that this constitutes bad faith under Policy ¶ 4(b)(i).”).
As such, the Panel holds 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 Policy ¶¶¶¶ 4(b)(i), (ii), (iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <spectrumj.net> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: July 21, 2021
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