Charter Communications Holding Company, LLC v. Amir Ali
Claim Number: FA1808001800576
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Madelon Lapidus of Holland & Hart LLP, Colorado, USA. Respondent is Amir Ali (“Respondent”), Pakistan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <getcharterspectrumdeals.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 August 8, 2018; the Forum received payment on August 8, 2018.
On August 9, 2018, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <getcharterspectrumdeals.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 August 9, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 29, 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@getcharterspectrumdeals.com. Also on August 9, 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.
On August 31, 2018, 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 <getcharterspectrumdeals.com> domain name is confusingly similar to Complainant’s CHARTER SPECTRUM mark.
2. Respondent does not have any rights or legitimate interests in the <getcharterspectrumdeals.com> domain name.
3. Respondent registered and uses the <getcharterspectrumdeals.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Charter Communications Holding Company, LLC, is a telecommunications company providing services to over 26 million customers in the United States. Complainant holds a registration for its CHARTER SPECTRUM mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,618,726, registered Oct. 7, 2014).
Respondent registered the <getcharterspectrumdeals.com> domain name on January 27, 2018, and uses it to resolve to a website that mimics Complainant’s website and offers services that directly compete with Complainant’s telecommunications business.
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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The Panel finds that Complainant has rights in the CHARTER SPECTRUM mark under Policy ¶ 4(a)(i) through registration with the USPTO. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
Respondent’s <getcharterspectrumdeals.com> domain name uses Complainant’s mark and merely adds the generic terms “get” and “deals” and the gTLD “.com.” These changes do not distinguish the disputed domain name from Complainant’s 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).). Accordingly, the Panel finds that Respondent’s <getcharterspectrumdeals.com> domain name is confusingly similar to Complainant’s CHARTER SPECTRUM 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 alleges that Respondent does not have rights or legitimate interests in the disputed domain name, and is not commonly known by the domain name. Complainant has not licensed or otherwise authorized Respondent to use its CHARTER SPECTRUM mark. The WHOIS information of record for the <getcharterspectrumdeals.com> domain name lists “Amir Ali” as the registrant. Therefore, the Panel finds that Respondent is not commonly known by the <getcharterspectrumdeals.com> domain name. See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name); see also State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)).
Complainant also argues that Respondent uses the <getcharterspectrumdeals.com> domain name to pass off as Complainant by resolving to a website that mimics Complainant’s own website. Under Policy ¶¶ 4(c)(i) and 4(c)(iii), use of a domain name to pass off as a complainant is not a bona fide offering of goods or services or legitimate noncommercial or fair use. See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)). Complainant provides screenshots of the <getcharterspectrumdeals.com> website and Complainant’s <www.spectrum.com> website, which indicate that both sites feature Complainant’s SPECTRUM logo and information about Complainant’s telecommunications business. Therefore, the Panel finds that Respondent fails to use the disputed domain name for a legitimate use under Policy ¶¶ 4(c)(i) or (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant demonstrates that 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. Under Policy ¶ 4(b)(iv), use of a domain name to attract Internet users and create confusion as to the source, sponsorship, affiliation or endorsement of the content therein for commercial gain is evidence of bad faith. See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). Accordingly, the Panel finds that Respondent registered and used the <getcharterspectrumdeals.com> domain name in bad faith under Policy ¶ 4(b)(iv).
Complainant also contends that Respondent registered the <getcharterspectrumdeals.com> domain name with actual knowledge of Complainant’s rights in the CHARTER SPECTRUM mark. Actual knowledge of a complainant's rights in a mark prior to registering the disputed domain name is evidence of bad faith under Policy ¶ 4(a)(iii). See 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). A respondent may have actual knowledge of a complainant’s rights in a mark when a complainant’s mark is famous. See Victoria’s Secret Stores Brand Mgmt., Inc. v. Michael Bach, FA 1426668 (Forum March 2, 2012) (“Although Complainant has not submitted evidence indicating actual knowledge by Respondent of its rights in the trademark, the Panel finds that, due to the fame of Complainant’s [VICTORIA’S SECRET] mark, Respondent had actual notice at the time of the domain name registration and therefore registered the domain name in bad faith under Policy ¶ 4(a)(iii).”). Complainant’s CHARTER SPECTRUM mark has created significant good will and consumer recognition around the world and has been used by Complainant since at least 1994. Therefore, due to the fame of Complainant’s mark, the Panel finds that Respondent had actual knowledge of Complainant’s rights when the <getcharterspectrumdeals.com> domain name was registered and thus finds in bad faith under Policy ¶ 4(a)(iii).
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 <getcharterspectrumdeals.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: September 5, 2018
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