Charter Communications Holding Company, LLC v. Domain Admin / TotalDomain Privacy Ltd
Claim Number: FA2204001992122
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Lian Ernette of Holland & Hart LLP, Colorado, USA. Respondent is Domain Admin / TotalDomain Privacy Ltd (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <panoramacharter.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 12, 2022; the Forum received payment on April 12, 2022.
On April 14, 2022, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <panoramacharter.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 April 15, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 5, 2022 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.com. Also on April 15, 2022, 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 May 12, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <panoramacharter.com> domain name is confusingly similar to Complainant’s CHARTER mark.
2. Respondent does not have any rights or legitimate interests in the <panoramacharter.com> domain name.
3. Respondent registered and uses the <panoramacharter.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant is the well-known telecommunications company and holds registrations for its CHARTER mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,899,216, registered Jan. 4, 2011).
Respondent registered the <panoramacharter.com> domain name on June 19, 2017, and uses it to host pay-per-click advertisements, and 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”).
Respondent’s <panoramacharter.com> domain name uses the CHARTER mark and adds the word “panorama” and the “.com” gTLD. Under Policy ¶ 4(a)(i), adding a word along with a “.com” gTLD is insufficient to differentiate a disputed domain name from the mark it incorporates. 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 Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) (“Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the DELL mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i).”). The Panel finds that Respondent’s <panoramacharter.com> domain name is confusingly similar to Complainant’s CHARTER mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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”).
Complainant argues that Respondent has no rights or legitimate interests in the <panoramacharter.com> domain name, as it is not commonly known by the domain name. Complainant has not authorized or licensed Respondent to use its CHARTER mark. The WHOIS information identifies Respondent as “Domain Admin / TotalDomain Privacy Ltd.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). 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.”)
Complainant also argues that Respondent does not use the <panoramacharter.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use, as Respondent uses the domain name to host pay-per-click advertisements for click-through revenue. Under Policy ¶¶ 4(c)(i) and (iii), using a disputed domain name for pay-per-click advertisements is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Yahoo! Inc. v. Web Master, FA 127717 (Forum Nov. 27, 2002) (finding that the respondent’s use of a confusingly similar domain name to operate a pay-per-click search engine, in competition with the complainant, was not a bona fide offering of goods or services). Here, Complainant provides screenshots of the disputed domain name’s resolving website, which displays pay-per-click advertisements that redirect users to Complainant’s competitors. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) or (iii).
Complainant further argues that Respondent has no rights or legitimate interests in the <panoramacharter.com> domain name, as Respondent is offering the disputed domain name for sale. Under Policy ¶ 4(a)(ii), a respondent lacks rights and legitimate interests in a disputed domain name when they offer the domain name for sale. See Altria Group, Inc. v. Stacey Scott / Baldwin Inc, FA1410001584163 (Forum Nov. 12, 2014) (finding that the respondent’s only use of the resolving website was to advertise the sale of the associated domain name indicated that the respondent lacked rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii)). Complainant provides screenshots showing that Respondent offers the domain name for sale and provides a vehicle for the submission of offers and payments. The Panel finds that this is also not a bona fide offering of goods or services or a legitimate noncommercial or fair use, further demonstrating Respondent’s lack of rights under Policy ¶¶ 4(c)(i) and (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered the <panoramacharter.com> domain name in bad faith with actual knowledge of Complainant’s rights in the CHARTER mark. The Panel agrees, noting the fame of the CHARTER mark, and finds find bad faith under Policy ¶ 4(a)(iii). See AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) (“Complainant contends that Respondent’s knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii).”)
Complainant argues that Respondent registered and uses the <panoramacharter.com> domain name in bad faith by offering the disputed domain name for sale. The Panel agrees and finds that this is a further indication of bad faith under 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).”)
The Panel finds that Complainant has satisfied 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.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: May 13, 2022
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