Charter Communications Holding Company, LLC v. Chester Roland
Claim Number: FA2110001970670
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Lian Ernette of Holland & Hart LLP, Colorado, USA. Respondent is Chester Roland (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <panoramacharter.live>, registered with NameCheap, 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 October 26, 2021; the Forum received payment on October 26, 2021.
On October 27, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <panoramacharter.live> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 October 27, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 16, 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@panoramacharter.live. Also on October 27, 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.
A timely Response was received and determined to be complete on October 30, 2021.
On November 21, 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 over 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. Complainant has rights in the CHARTER mark through its registration in the United States in 2011. Complainant owns the domain <charter.com>. Complainant operates an employee portal called PANORAMA CHARTER which is accessible only to Complainant’s employees through the <panorama.charter.com> sub-domain name.
Complainant alleges that the disputed domain name is identical or confusingly similar to its CHARTER mark, as it incorporates the mark in its entirety, merely adding the generic term “panorama” and the “.live” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is neither an authorized user nor licensee of the CHARTER mark, nor is Respondent commonly known by the disputed domain name. Further, Complainant Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services or legitimate noncommercial or fair use as the resolving website resembles a legitimate website likely to be affiliated with Complainant; it presents users with pay-per-click links (some to services that compete with Complainant), and malware. Additionally, although Respondent provides a disclaimer, it is not sufficient to differentiate Complainant from Respondent. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. The resolving website presents users with pay-per-click links, along with malware, and attempts to attract users by confusing them for Respondent’s own commercial gain. Furthermore, Respondent had actual notice of Complainant’s rights in the mark, evidenced by Respondent’s use of Complainant’s mark and information. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent states, in pertinent part: “I am the blogger and I have created this site for the information purpose only and we have never tried to harm the brand in any manner, we have already placed disclosure that we are not associated with panorama charter in any manner and this site is for the information only which does not include any false information about panorama charter, I do not think this will affect the users in any way or I am violating any policy of Icann.”
Complainant owns the mark CHARTER and uses it to provide telecommunication services.
Complainant’s rights in its mark date back to at least 2011.
The disputed domain name was registered in 2020.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The resolving website displays Complainant’s mark and purports to provide information on Complainant’s employee services portal; it also displays this text: “Disclaimer: This website is not associated with the Panorama charter.”; it presents users with pay-per-click links (some to services that compete with Complainant) and malware.
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.
The disputed domain name incorporates Complainant’s CHARTER mark in its entirety, merely adding the generic term “panorama” and the “.live” gTLD. Simply adding a generic term and gTLD is generally not sufficient to differentiate the disputed domain name from the mark. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).); see also Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy). Thus the Panel finds that the <panoramacharter.live> domain is confusingly similar to Complainant’s CHARTER mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: past panels have found that the Panel may reference WHOIS information to determine whether a Respondent is commonly known by a disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Here, the WHOIS Information shows the registrant as “Chester Roland”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The resolving website resembles a legitimate website likely to be affiliated with Complainant; it presents users with pay-per-click links (some to services that compete with Complainant) and malware.
The resolving website displays a disclaimer, however this is not sufficient to mitigate confusion between Respondent and Complainant. Past panels have agreed that the implementation of a disclaimer does not eliminate confusion between the association of the two parties, nor does it confer rights or legitimate interests to the Respondent. See Google Inc. v. Domain Admin / Whois Privacy Corp, FA 1726692 (Forum May 16, 2017) (finding that the mere existence of a disclaimer on a webpage is not sufficient to confer rights and legitimate interests in a disputed domain name); see also Las Vegas Sands, Inc. v. Red Group, D2001-1057 (WIPO Dec. 6, 2001) (justifying the conclusion that the respondent wishes to trade on the fame of the complainant’s trademark, regardless of the presence of a small-print disclaimer that is unavailable to Internet users until they have already entered the gambling site, because the disclaimer fails to remedy initial confusion).
Using a disputed domain name to present users with advertisements and pay-per-click links, or hosting malicious software, may not be a bona fide offering of goods and services or legitimate noncommercial or fair use, even if the resolving website also provides information on Complainant. See Homer TLC, Inc. v. SGD Networks Pvt Ltd., FA 1392397 (Forum July 8, 2011) (finding no rights or legitimate interests where the “domain name resolves to a website which purportedly offers information about Complainant’s services, as well as advertised links redirecting Internet users to Complainant’s competitors in the home improvement industry.”); see also American Express Marketing & Development Corp. v. Crown Insurance Partners, FA0904001255638 (Forum May 13, 2009) (finding respondent had no rights in the disputed domain name where it displayed “information on Complainant’s gift card products and advertises such products as well as those of Complainant’s competitors.”); see also 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.”); see also TGI Friday’s of Minnesota, Inc. v. Tulip Company / Tulip Trading Company, FA 1691369 (Forum Oct. 10, 2016) (”Respondent uses the domain for a parking page displaying various links that consumers are likely to associate with Complainant, but that simply redirect to additional advertisements and links that divert traffic to third-party websites not affiliated with Complainant… The Panel here finds that Respondent is not using the domain name in connection with a bona fide offering of goods or services.”); see also Snap Inc. v. Domain Admin / Whois Privacy Corp., FA 1735300 (Forum July 14, 2017) (“Use of a disputed domain name to offer malicious software does not constitute a bona fide offering or a legitimate use per Policy ¶ 4(c)(i) & (iii).”).
For all the above reasons, the Panel finds that Respondent does not use the disputed domain name to make a bona fide offering of goods and services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent alleges that it registered and uses the disputed domain name only to provide accurate information, and it notes that the resolving website contains a disclaimer.
Use of a disclaimer does not deter a finding of bad faith under Policy ¶ 4(a)(iii). Previous panels have found that the mere implementation of a disclaimer does not eliminate bad faith. See Continental Airlines, Inc. v. Vartanian, FA 1106528 (Forum Dec. 26, 2007) (“Respondent’s use of a disclaimer does note mitigate a finding of bad faith under Policy ¶ 4(a)(iii)”); see also Ciccone v. Parisi, D2000-0847 (WIPO Oct. 12, 2000) (“Respondent’s use of a disclaimer on its website is insufficient to avoid a finding of bad faith. First, the disclaimer may be ignored or misunderstood by Internet users. Second, a disclaimer does nothing to dispel initial interest confusion that is inevitable from Respondent’s actions. Such confusion is a basis for finding a violation of Complainant’s rights.”).
Respondent does not rebut Complainant’s allegations (supported by evidence) to the effect that the resolving website displays pay-per-click advertising links and links to malware. Consequently, the Panel does not accept Respondent’s allegations to the effect that the resolving website merely provides accurate information.
On the contrary, the Panel finds, on the basis of the evidence in the file, that the resolving website attempts to confuse users and presents them with pay-per-click links, attracting users for Respondent’s commercial gain. Using a disputed domain name to present users with pay-per-click links for the Respondent’s commercial gain may indicate bad faith under Policy ¶ 4(b)(iv). See Tumblr, Inc. v. Ailing Liu, FA1402001543807 (Forum Mar. 24, 2014) (“Bad faith use and registration exists under Policy ¶ 4(b)(iv) where a respondent uses a confusingly similar domain name to resolve to a website featuring links and advertisements unrelated to complainant’s business and respondent is likely collecting fees.”); see also Vivint, Inc. v. Online Management, FA1403001549084 (Forum Apr. 23, 2014) (holding that the respondent had registered and used the disputed domain name in bad faith according to Policy ¶ 4(b)(iv) where the disputed domain name resolved to a parking page that featured no content besides sponsored advertisements and links). Therefore, the Panel finds that Respondent registered and is using the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website explicitly refers to Complainant and Respondent admits that it knew of Complainant. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes 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 <panoramacharter.live> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: November 22, 2021
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