Charter Communications Holding Company, LLC v. Zhi Chao Yang
Claim Number: FA2108001961163
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Lian Ernette of Holland & Hart LLP, Colorado, USA. Respondent is Zhi Chao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <espectrumtv.com>, registered with West263 International Limited.
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 25, 2021; the Forum received payment on August 25, 2021.
On August 26, 2021, West263 International Limited confirmed by e-mail to the Forum that the <espectrumtv.com> domain name is registered with West263 International Limited and that Respondent is the current registrant of the name. West263 International Limited has verified that Respondent is bound by the West263 International Limited 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 30, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 20, 2021 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@espectrumtv.com. Also on August 30, 2021, 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, in both English and Chinese.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default, in both English and Chinese.
On September 23, 2021, 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.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
Prior to discussing the three elements of the Policy, the Panel must decide on the language of the proceedings. The Registration Agreement is written in Chinese, thereby making the language of the proceedings Chinese.
Pursuant to UDRP Rule 11(a), the Panel has the authority to determine a different language for the proceedings, having regard to the circumstances of the case. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Pursuant to Rule 10(b), Respondent must be given a fair opportunity to present its case. Pursuant to Rule 10(c), the Panel may weigh the relative time and expense in enforcing the Chinese language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).
In the present case, Respondent has received the Commencement Notification in Chinese and has chosen not to respond to the Complaint; the resolving website is in the English language, thus Respondent is conversant with that language. Pursuant to Rule 11(a), having regard to the circumstances of the case, the Panel determines that fairness and justice to both parties, and due expedition, are best satisfied by conducting the remainder of the proceedings in English. See H-D U.S.A., LLC v. Yoshihiro Nakazawa, FA 1736477 (Forum July 21, 2017); see also UBS AG v. ratzel laura, FA 1735687 (Forum July 14, 2017).
A. Complainant
Complainant states that it is a telecommunications company providing 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 TV mark based upon its registration in the United States in 2018.
Complainant alleges that the disputed domain name is confusingly similar to its CHARTER TV mark as it incorporates the mark in its entirety, merely adding the letter “e” and the “.com” generic top-level domain (“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 to use Complainant’s SPECTRUM TV 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. Rather, Respondent hosts related pay-per-click links at the disputed domain.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent has displayed a previous pattern of bad faith domain name registration. The resolving website displays competing pay-per-click advertising links. Finally, Respondent had knowledge of Complainant’s rights in the SPECTRUM TV mark prior to the registration of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark SPECTRUM TV and uses it to provide telecommunication services.
Complainant’s rights in its mark date back to 2018.
The disputed domain name was registered in 2020.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolves to a parked page that displays per-per-click advertising links to services that compete with those of Complainant.
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 disputed domain name incorporates Complainant’s SPECTRUM TV mark in its entirety, merely prefixing the letter “e” (a common prefix for “electronic”), omitting a space, and adding the “.com” gTLD. Addition of a single letter, omitting a space, and adding a gTLD are insufficient to overcome confusing similarity between a domain name and the mark it incorporates per Policy ¶ 4(a)(i). See TripAdvisor, LLC / Smarter Travel Media LLC / Jetsetter, Inc. v. RAKSHITA MERCANTILE PRIVATE LIMITED, FA 1623459 (Forum July 17, 2015) (“Adding a single letter is not enough to prevent a domain name from being confusingly similar to a mark.”); see also Research Now Group, Inc. v. Pan Jing, FA 1735345 (Forum July 14, 2017) (“Complainant also asserts that Respondent’s <researchnow.host>, <researchnow.top> and <researchnow.club> domain names are confusingly similar to Complainant’s mark because each merely eliminates the space and appends a gTLD to the fully incorporated mark. The addition of a gTLD and elimination of spacing are both considered irrelevant when distinguishing between a mark and a domain name.”). Therefore, the Panel finds that the <espectrumtv.com> domain name is confusingly similar to Complainant’s SPECTRUM TV mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. 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 “Zhi Chao Yang”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website displays pay-per-click advertising links for services that compete with those of Complainant. Use of a disputed domain name to display competing hyperlinks is not considered 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). See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). Thus, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent has engaged in a pattern of bad faith registration and use. In support, it provides a list of numerous domain names registered by Respondent that allegedly incorporate misspellings of third-party marks. However, Complainant does not cite any UDRP proceedings in which Respondent was found to have registered and used a domain name in bad faith. Consequently, the Panel finds that Respondent has failed to satisfy its burden of proof for this allegation and it will not discuss it any further.
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, the resolving website displays competing pay-per-click advertising hyperlinks. This is sufficient to find bad faith registration and use. See Capital One Financial Corp. v. Above.com Domain Privacy / Above.com Domain Privacy, FA1501001598657 (Forum February 20, 2015) (“This Panel agrees that Respondent’s use as shown in Exhibits C-D illustrates that Respondent here seeks commercial gain through a likelihood of confusion, as competing hyperlinks have been found to establish evidence of intent to seek commercial gain through referral fees, and thus demonstrates bad faith registration under Policy ¶ 4(b)(iv).”); see also American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum January 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iv)”). The Panel finds that Respondent has registered and is using the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <espectrumtv.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 24, 2021
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