Charter Communications Holding Company, LLC v. claude greiner / Metro25 Of Detroit Inc.
Claim Number: FA1912001877199
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Lian Ernette of Holland & Hart LLP, United States. Respondent is claude greiner / Metro25 Of Detroit Inc. (“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spectrumauthorizedretailer.com>, registered with GoDaddy.com, LLC.
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 December 30, 2019; the Forum received payment on December 30, 2019.
On January 6, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <spectrumauthorizedretailer.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 January 6, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 27, 2020 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@spectrumauthorizedretailer.com. Also on January 6, 2020, 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 January 30, 2020, 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 TV, internet, and voice services. Complainant provides 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 SPECTRUM AUTHORIZED RETAILER and CHARTER SPECTRUM marks based upon registration in the United States in, respectively, Dec. 11, 2018, and Oct. 7, 2014. Complainant also owns a US registration for the SPECTRUM AUTHORIZED RETAILER logo, registered on Dec. 11, 2018, first use March 1, 2018. Complainant authorizes certain entities to act as retail partners for its telecommunications services. Any entity interested in becoming a retail partner must first apply and be approved by Complainant. Once the relationship is approved, Complainant grants its retail partners a limited license to use the Spectrum Authorized Retailer logo. Use of the logo is not permitted by any entity other than a duly authorized retail partner and is accompanied by strict conditions.
Complainant alleges that the disputed domain name is confusingly similar to its SPECTRUM AUTHORIZED RETAILER mark as it includes the mark in its entirety, merely adding the “.com” gTLD.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name because Respondent is not commonly known by the disputed domain name and is not authorized or permitted to use Complainant’s mark. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. The resolving website displays Complainant’s mark and SPECTRUM AUTHORIZED RETAILER logo, thereby suggesting an affiliation with Complainant where none exists. A comparison of the resolving website with Complainant’s legitimate website reveals that the resolving website intentionally mimics the overall look and feel of Complainant’s website, including the names of Complainant’s bundled deal packages. Furthermore, the “Current Specials” offered by Respondent are not active “clickable” links. Indeed, nothing on Respondent’s website appears interactive, and even the provided contact number is obviously false and missing a digit (it appears as “+1-888-000-000”). Respondent’s prominent use of Complainant’s mark and logo evidences Respondent’s intent to mislead consumers into believing they have arrived at the website of a legitimate authorized retailer, when this is not the case. Respondent’s behavior is likely to result in consumer confusion and stands to damage the goodwill and trust in Complainant’s mark and logo.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith because Respondent uses the disputed domain name to pass off as Complainant in order to commercially benefit by offering competing services. Additionally, Respondent had knowledge of Complainant’s rights in the SPECTRUM Marks prior to the registration of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark CHARTER SPECTRUM and uses it to provide TV, internet, and voice services.
Complainant’s rights in its mark date back to 2014.
The disputed domain name was registered in 2017.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent uses the disputed domain name falsely to purport to be an authorized retailer of Complainant; the links on the resolving website are not active and the displayed contact telephone number is not a valid number.
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”).
According to 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”), “… where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing.”
The disputed domain name incorporates the dominant part of Complainant’s CHARTER SPECTRUM mark and merely adds the descriptive term “authorized retailer” and the “.com” generic top-level domain (“gTLD”). Addition of generic/descriptive terms and a gTLD does not negate confusing similarity between a disputed domain name and a 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).). Thus, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Respondent is not authorized or permitted to use Complainant’s marks or logo. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding 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 of record lists the registrant as “Claude Greiner.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name falsely to purport to be an authorized retailer of Complainant; the links on the resolving website are not active and the displayed contact telephone number is not a valid number. Using a disputed domain name falsely to claim association with a complainant is not a bona fide offering of goods or services or a legitimate noncommercial or fair use of that domain name per Policies ¶¶ 4(c)(i) & (iii). Indeed, according to paragraph 2.5 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Jurisprudential Overview 3.0): “Fundamentally, a respondent’s use of a domain name will not be considered ‘fair’ if it falsely suggests affiliation with the trademark owner …”. See 201 Folsom Option JV, L.P. and 201 Folsom Acquisition, L.P. v. John Kirkpatrick, D2014-1359 (WIPO, Oct. 28, 2014); see also Charter Communications Holding Company, LLC v. Chandon Kumar, FA1808001800637 (Forum Sept. 7, 2018) (“The disputed domain name incorporates Complainant’s registered mark without authorization, and it is being used for a website that mimics Complainant’s website in a manner obviously designed to mislead Internet users. Such use does not give rise to rights or legitimate interests under the Policy.”). Consequently the Panel finds that Respondent has failed to use the disputed domain name to make bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). And the Panel finds that Respondent lacks rights or legitimate interests in the disputed domain name.
According to 3.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”), in general, where a respondent registers a domain name before the complainant’s trademark rights accrue, panels will not normally find bad faith on the part of the respondent.
The disputed domain name was registered in 2017, before Complainant’s mark and logo SPECTRUM REGISTERED RETAILER. Therefore, the Panel cannot find bad faith registration and use on the basis of that mark.
However, Complainant’s CHARTER SPECTRUM mark was registered in 2014, before the registration of the disputed domain name. As already noted, the Panel finds that the disputed domain name is confusingly similar to that mark.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. 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, consumers visiting the resolving website are likely to be confused as to whether Respondent and/or its website is affiliated in some way with Complainant; and/or the disputed domain name or the associated website are endorsed, authorized, or sponsored by Complainant, none of which are true. This is a form of bad faith use of the disputed domain name. See Bank of America Corp. v. Out Island Props., Inc., FA 154531 (Forum June 3, 2003) (bad faith established “[s]ince the disputed domain names contain entire versions of Complainant’s marks and are used for something completely unrelated to their descriptive quality, a consumer searching for Complainant would become confused as to Complainant’s affiliation with the resulting search engine website.”); see also Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum December 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also Charter Communications Holding Company, LLC v. Taha Shaikh / Tskdesigners, FA 1814475 (Forum Nov. 25, 2018) (“Respondent appears to use a copycat page to solicit the sale of Complainant’s television, Internet, and voice communications services. It is unclear if the Respondent is actually providing Complainant’s services or is gathering personal information from website visitors while not providing any services. In either scenario, the Panel agrees that Respondent is attempting to commercially benefit from the use of Complainant’s SPECTRUM Marks in bad faith under Policy ¶ 4(b)(iv).”). Thus the Panel finds that Respondent registered and is using the disputed domain name in bad faith in the sense of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <spectrumauthorizedretailer.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: January 30, 2020
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