Charter Communications Holding Company, LLC v. Nwite Ephaim
Claim Number: FA1912001877238
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Lian Ernette of Holland & Hart LLP, United States. Respondent is Nwite Ephaim (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mycharteremail.net>, registered with FastDomain 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 30, 2019; the Forum received payment on December 30, 2019.
On December 31, 2019, FastDomain Inc. confirmed by e-mail to the Forum that the <mycharteremail.net> domain name is registered with FastDomain Inc. and that Respondent is the current registrant of the name. FastDomain Inc. has verified that Respondent is bound by the FastDomain 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 January 3, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 23, 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@mycharteremail.net. Also on January 3, 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 24, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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, Charter Communications Holding Company, is a telecommunications company providing TV, internet, and voice services.
Complainant has rights in the CHARTER mark based upon registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <mycharteremail.net> domain name is confusingly similar to Complainant’s CHARTER mark as Respondent merely adds the generic terms “my” and “email” along with the “.net” generic top-level domain (“gTLD”) to Complainant’s mark.
Respondent does not have rights or legitimate interests in the <mycharteremail.net> domain name because Respondent is not commonly known by the at-issue domain name and is not authorized or permitted to use Complainant’s mark. Additionally, Respondent fails to use the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the at-issue domain name to spread malware to internet users. In addition, Respondent uses the disputed domain name to host pay-per-click advertisements.
Respondent registered and uses the <mycharteremail.net> domain name in bad faith because Respondent uses the domain name to commercially benefit by hosting hyperlinks related to Complainant’s business. Additionally, Respondent uses the disputed domain name to spread malware to Internet users. Finally, Respondent had knowledge of Complainant’s rights in the CHARTER mark prior to the registration of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in CHARTER.
Respondent is not affiliated with Complainant and is not authorized to use the CHARTER mark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired trademark rights in CHARTER.
Respondent uses the at-issue domain name to address a website displaying advertising links related to Complainant’s business and to distribute 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.
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”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the CHARTER mark with the USPTO demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Furthermore, Respondent’s <mycharteremail.net> domain name incorporates Complainant’s entire CHARTER mark prefaced with the generic term “my” all followed by the generic term “email” and the top-level domain “.com”. Under Policy ¶ 4(a)(i) the differences between Respondent’s domain name and Complainant’s trademark do nothing to distinguish one from the other. Therefore, the Panel concludes that Respondent’s <mycharteremail.net> domain name is confusingly similar to Complainant’s CHARTER trademark. 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).).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Nwite Ephaim” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <mycharteremail.net> domain name. The Panel therefore concludes that Respondent is not commonly known by the <mycharteremail.net> domain name for the purposes of Policy ¶ 4(c)(ii). See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
Additionally, Respondent uses its <mycharteremail.net> domain name to offer pay-per-click advertising links and to distribute malware. Respondent confusingly similar domain name addresses a website resembling what might be expected as a legitimate website that is affiliated with Complainant. The website pretends to offer email services but in fact aims at tricking consumers into allowing their browsers to be hijacked. Upon clicking-on “Login Helper” visitors are directed to a facility delivering a browser plug-in intent on infecting the visitor’s browser with malware. Moreover, visitors are also presented with numerous pay-per-click links to third parties advertisers. Respondent’s use of the domain name in this manner suggests neither a bona fide offering of goods or services under Policy ¶ 4 (c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See 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).”); 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.”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there is evidence from which the Panel may conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First as mentioned above regarding rights and interests, Respondent uses the at-issue confusingly similar domain name to distribute malware and offer third-party pay-per-click advertising links. Respondent’s use of its <mycharteremail.net> domain name in this manner indicates Respondent’s bad faith registration and use of the at-issue domain name under Policy ¶¶ 4(a)(iii) and (iv). See Twitter, Inc. v. Kiribati Media / Kiribati 200 Media Limited, FA1502001603444 (Forum Mar. 19, 2015) (“Using the disputed domain name to download malicious software into unsuspecting viewers’ computers evidences Respondent’s bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”); see also, Google Inc. v. James Lucas / FireStudio / Jameschee / FIRESTUDIO / SEONG YONG, FA1502001605757 (Forum Apr. 7, 2015) (“This Panel agrees that Respondent’s inclusion of advertisements to likely reap click-through fees is an example of bad faith pursuant Policy ¶ 4(b)(iv).”).
Finally, Respondent had actual knowledge of Complainant’s rights in the CHARTER mark when it registered <mycharteremail.net> as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s trademark. Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s rights in such domain name shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); 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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mycharteremail.net> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: January 24, 2020
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