Charter Communications Holding Company, LLC v. Johnathan Glazer / Cable Internet Hub Spectrum
Claim Number: FA2208002007021
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Julie A. Kent of Holland & Hart LLP, Colorado, USA. Respondent is Johnathan Glazer / Cable Internet Hub Spectrum (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cableinternethubspectrum.com>, registered with NameCheap, Inc..
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 3, 2022; the Forum received payment on August 3, 2022.
On August 3, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <cableinternethubspectrum.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 August 4, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 24, 2022 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@cableinternethubspectrum.com. Also on August 4, 2022, 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 29, 2022, 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 <cableinternethubspectrum.com> domain name is confusingly similar to Complainant’s SPECTRUM mark.
2. Respondent does not have any rights or legitimate interests in the <cableinternethubspectrum.com> domain name.
3. Respondent registered and uses the <cableinternethubspectrum.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant, Charter Communications Holding Company, LLC, provides cable television, internet, and related telecommunications services. Complainant holds a registration for the SPECTRUM mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 6,311,602, registered Apr. 6, 2021).
Respondent registered the <cableinternethubspectrum.com> domain name on November 12, 2021, and uses it to compete with 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 Panel finds that Complainant has rights in the SPECTRUM mark based on registration of the mark with the USPTO. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark).
Respondent’s <cableinternethubspectrum.com> domain name uses the SPECTRUM mark and adds the descriptive words “cable” and “internet” and the “.com” gTLD. These changes do not distinguish a disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i). See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”) Therefore, the Panel finds that Respondent’s <cableinternethubspectrum.com> domain name is confusingly similar to Complainant’s 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 claims that Respondent does not have rights or legitimate interests in the <cableinternethubspectrum.com> domain name because Respondent is not commonly known by the disputed domain name and is not associated with Complainant or authorized to use Complainant’s SPECTRUM mark. The Registrar lists the registrant of the disputed domain name as “Johnathan Glazer/Cable Internet Hub Spectrum.” However, Complainant demonstrates that there is no legitimate business by the name of “Cable Internet Hub Spectrum.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See Moneytree, Inc. v. Matt Sims / MoneyTreeNow, FA1501001602721 (Forum Mar. 3, 2015) (finding that even though the respondent had listed “Matt Sims” of “MoneyTreeNow” as registrant of the <moneytreenow.com> domain name, the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii), because he had failed to list any additional affirmative evidence beyond the WHOIS information); see also Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sept. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”)
Complainant also argues that Respondent does not use the <cableinternethubspectrum.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses the domain name to pass off as associated with Complainant. Passing off as a complainant is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Dell Inc. v. Devesh Tyagi, FA 1785301 (Forum June 2, 2018) (“Respondent replicates Complainant’s website and displays Complainant’s products. The Panel finds that this use is not a bona fide offering of goods or services under Policy ¶¶ 4(c)(i) & (iii).”) Complainant provides screenshots showing that the website at <cableinternethubspectrum.com> features Complainant’s mark and logo, and a similar blue color scheme and layout as Complainant’s website. Respondent also purports to be an “authorized reseller” for Complainant and offers competing services as those offered by Complainant. The Panel finds that these uses of the disputed domain name do not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶ 4(c)(i) or (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <cableinternethubspectrum.com> domain in bad faith because to disrupt Complainant’s business by passing off as Complainant for its own gain. A respondent’s registration and use of a disputed domain name to pass off as affiliated with the complainant is evidence of bad faith per Policy ¶ 4(b)(iii) and (iv). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding bad faith per Policy ¶¶ 4(b)(iii) and (iv) where the respondent used the disputed domain name to resolve to a website upon which the respondent passes off as the complainant and offers online cryptocurrency services in direct competition with the complainant’s business). Respondent attempts to pass off as affiliated with Complainant by mimicking Complainant’s website, and offering competing services. The Panel therefore finds that Respondent registered and uses the disputed domain in bad faith under Policy ¶ 4(b)(iii) and (iv).
Complainant also contends that Respondent registered the <cableinternethubspectrum.com> domain in bad faith with knowledge of Complainant’s rights in the SPECTRUM mark. Since Respondent passes off as Complainant and, due to the fame of the SPECTRUM mark, the Panel agrees and finds that Respondent had actual notice of Complainant’s rights in the SPECTRUM mark and thus registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration").
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 <cableinternethubspectrum.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: August 30, 2022
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