Charter Communications Holding Company, LLC v. rizi shk / TekTiks Inc
Claim Number: FA1808001800229
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Madelon Lapidus of Holland & Hart LLP, Colorado, USA. Respondent is rizi shk / TekTiks Inc (“Respondent”), Illinois, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spectrumdeals.co>, 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 August 6, 2018; the Forum received payment on August 6, 2018.
On August 7, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <spectrumdeals.co> 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 August 7, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 27, 2018 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@spectrumdeals.co. Also on August 7, 2018, 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. However, Respondent did send two e-mails to the Forum, see below.
On August 31, 2018, 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. Complainant uses its CHARTER SPECTRUM mark to promote its products and services and established rights in the mark through registration in the United States In 2014.
Complainant alleges that the disputed domain name is confusingly similar to Complainant’s mark as it merely eliminates the first term of the mark, “CHARTER,” and appends the generic term “deals” and the country code top-level domain (“ccTLD”) “.co.”
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Complainant has not licensed or otherwise authorized Respondent to use its CHARTER SPECTRUM mark in any fashion. Respondent is also not commonly known by the disputed domain name as the WHOIS information of record lists “rizi shk / TekTiks Inc” as the registrant. Respondent is not using the disputed domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to pass off as Complainant by resolving to a website that mimics Complainant’s own <www.spectrum.com> website.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. Respondent attempts to create confusion with Complainant’s CHARTER SPECTRUM mark for commercial gain by resolving to a website that mimics Complainant’s website and offers services that directly compete with Complainant’s telecommunications business. Further, Respondent registered the domain name with actual and constructive knowledge of Complainant’s rights in the CHARTER SPECTRUM mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. However, it its e-mails to the Forum Respondent states, in pertinent part (emphases in original):
We realize the gross errors regarding 'spectrumdeals.co', and have taken down the website.
We are not contesting the case, and are willing to transfer the Domain Name to the Complainant according to the remedy they are seeking.
And
We are not contesting the case, and are agreeable to transfer the Domain Name to Charter Communications Holding Company.
For the reasons set forth below, the Panel will not make any findings of fact.
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.
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."
In the present case, the parties have both asked for the domain name to be transferred to the Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.
See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
Given the common request of the Parties, it is Ordered that the <spectrumdeals.co> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: August 31, 2018
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