Charter Communications Holding Company, LLC v. Babu Bhailal
Claim Number: FA2209002013161
Complainant is Charter Communications Holding Company, LLC ("Complainant"), United States, represented by Julie Kent of Holland & Hart LLP, United States. Respondent is Babu Bhailal ("Respondent"), Sri Lanka.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <panorama-charter.com>, registered with NameSilo, 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to Forum electronically on September 22, 2022; Forum received payment on September 22, 2022.
On September 22, 2022, NameSilo, LLC confirmed by email to Forum that the <panorama-charter.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 September 23, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 13, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@panorama-charter.com. Also on September 23, 2022, the Written Notice of the Complaint, notifying Respondent of the email 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, Forum transmitted to the parties a Notification of Respondent Default.
On October 20, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 is a telecommunications company providing services to more than 32 million customers in the United States. Complainant has used CHARTER and related marks in connection with cable television and related services since at least as early as 2014. Complainant uses PANORAMA CHARTER for an intranet that is accessible to its employees through <panorama.charter.com> and other <charter.com> subdomains. Complainant owns various relevant United States trademark registrations, including a registration for CHARTER in standard character form that issued in 2011.
Respondent registered the disputed domain name <panorama-charter.com> in April 2022. The domain name is being used for a website entitled "Panorama Charter," with the subheading "Employee Login Guide for Panorama Charter"; Complainant states that this website includes content copied from Complainant's websites, including copyrighted images, photographs, and other proprietary content, and alleges that Respondent intends to mislead consumers into believing that the website is owned by or otherwise affiliated with Complainant. The website also includes pay-per-click advertisements, some of which relate to services offered by Complainant's competitors, and has an inconspicuous disclaimer at the bottom of the page. Complainant notes that the domain name has active MX (mail exchanger) records, suggesting that Respondent also intends to use or is already using the domain name to pass off as Complainant in fraudulent email messages. Complainant states that Respondent is not commonly known by the domain name, is not affiliated with Complainant, and has not been given permission to use Complainant's marks.
Complainant contends on the above grounds that the disputed domain name <panorama-charter.com> is identical or confusingly similar to Complainant's marks, including CHARTER; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was 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."
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <panorama-charter.com> incorporates Complainant's registered CHARTER trademark, adding a hyphen and the term "Panorama," which Complainant uses in connection with its business, and appending the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Charter Communications Holding Co., LLC v. Domain Admin / TotalDomain Privacy Ltd, FA 1992122 (Forum May 13, 2022) (finding <panoramacharter.com> confusingly similar to CHARTER); Charter Communications Holding Co., LLC v. Hasan Iqbal, FA 1992121 (Forum May 11, 2022) (finding <panoramacharter.net> confusingly similar to CHARTER); Charter Communications Holding Co., LLC v. Chester Roland, FA 1970670 (Forum Nov. 22, 2021) (finding <panoramacharter.live> confusingly similar to CHARTER). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization and it is being used to impersonate Complainant for Respondent's commercial gain, attracting Internet users to a website that attempts to pass off as Complainant and possibly for other fraudulent purposes. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Charter Communications Holding Co., LLC v. Domain Admin / TotalDomain Privacy Ltd, FA 1992122, supra (finding lack of rights or interests in similar circumstances); Charter Communications Holding Co., LLC v. Hasan Iqbal, FA 1992121, supra (same); Charter Communications Holding Co., LLC v. Chester Roland, FA 1970670, supra (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name incorporating Complainant's registered mark and corresponding almost exactly to an address that Complainant uses for its employee intranet, and is using the domain name to impersonate Complainant for commercial gain. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Charter Communications Holding Co., LLC v. Domain Admin / TotalDomain Privacy Ltd, FA 1992122, supra (finding bad faith registration and use in similar circumstances); Charter Communications Holding Co., LLC v. Hasan Iqbal, FA 1992121, supra (same); Charter Communications Holding Co., LLC v. Chester Roland, FA 1970670, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <panorama-charter.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: October 20, 2022
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