Charter Communications Holding Company, LLC v. Milen Radumilo
Claim Number: FA2210002014412
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Julie Kent of Holland & Hart LLP, Colorado, USA. Respondent is Milen Radumilo (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spectrum-internet.info>, registered with CommuniGal Communication Ltd..
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.
James Bridgeman SC as Panelist.
Complainant submitted a Complaint to Forum electronically on October 2, 2022; Forum received payment on October 2, 2022.
On October 4, 2022, CommuniGal Communication Ltd. confirmed by e-mail to Forum that the <spectrum-internet.info> domain name is registered with CommuniGal Communication Ltd. and that Respondent is the current registrant of the name. CommuniGal Communication Ltd. has verified that Respondent is bound by the CommuniGal Communication Ltd. 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 October 10, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 31, 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@spectrum-internet.info. Also on October 10, 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, Forum transmitted to the parties a Notification of Respondent Default.
On November 4, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed James Bridgeman SC 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 claims rights in the SPECTRUM and SPECTRUM INTERNET service marks which it uses in its telecommunications business providing services to over 32 million customers in the United States, with 96,000 employees in 41 states.
Complainant submits that it has used the SPECTRUM mark and other marks including the word SPECTRUM, details of which are set out below, since at least as early as 2014 in connection with cable television, internet, and related telecommunications services.
Complainant submits that the disputed domain name is identical and confusingly similar to the SPECTRUM and SPECTRUM INTERNET marks in which it has rights as the disputed domain name contains each of the marks in its entirety.
The inclusion of the hyphen between the two elements in the disputed domain name does not negate confusing similarity. See Skechers U.S.A., Inc. v. Viljae, FA1784650 (Forum June 1, 2018) (finding confusing similarity where “[t]he disputed domain name <skechers-outlet.com> adds a hyphen and the generic term ‘outlet’ to Complainant’s registered SKECHERS mark”).
Furthermore, the addition of a generic top-level domain extension <.info> is irrelevant for purposes of ascertaining confusing similarity. See Guess? IP Holder L.P. and Guess?, Inc. v. Pamela Powell, FA2007406 (Forum Sept. 2, 2022) (finding the domain <guesses.info> confusingly similar to the complainant’s GUESS mark despite the addition of the “.info” generic top-level domain”).
Complainant next alleges that Respondent has no rights or legitimate interests in the disputed domain name arguing that there is no evidence that Respondent is commonly known by the disputed domain name. See Charter Commc’ns Holding Co., LLC v. Jason Malone/Corporate Servs. Direct, FA1813790 (Forum Dec. 6, 2018) (finding that respondent was not commonly known by the disputed domain name where no evidence in the record showed that respondent was commonly known by that name, including the WHOIS information and Complainant’s statement that it had not authorized respondent’s use of its mark).
Complainant has not given Respondent permission to use the SPECTRUM or SPECTRUM INTERNET marks and this lack of consent supports a finding that Respondent has no legitimate interests in the disputed domain name. See Charter Commc’ns Holding Co., LLC v. Jason Malone/Corporate Servs. Direct, FA1813790 (Forum Dec. 6, 2018) (“Complainant states that respondent has never been legitimately affiliated with complainant, has never been known by the domain name prior to its registration, and complainant has not given respondent permission to use the mark in any manner. The Panel here finds that respondent is not commonly known by <spectrumdealsus.com> name under Policy ¶4(c)(ii).”).
Referring to a screen capture of the website to which the disputed domain name resolves which is exhibited in an annex to the Complaint, Complainant contends that it shows that Respondent is using the disputed domain name to redirect to competitor’s websites through pay-per-click advertisements. Panels have consistently held that appropriating another’s mark to offer advertisements that link to websites featuring related and competing content as well as unrelated websites—presumably to receive advertising revenue and referral fees for each misdirected Internet user—is insufficient to establish that a respondent has rights or legitimate interests in a domain name. See Time Warner Cable Inc. v. Paul/Jiri Capcuch, FA1463778 (Forum Oct. 30, 2012) (holding that using a domain name which incorporates a complainant’s mark to host a pay-per-click website is neither a bona fide offering of goods or services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii)).
Complainant further argues that Respondent also uses the resolving webpage to advertise the disputed domain name for sale which “can be evidence of a lack of rights or legitimate interest in” the domain. Morgan Stanley v. Carolina Rodrigues/Fundacion Comercio Electornico, FA1849227 (Forum July 23, 2019).
Additionally, Complainant refers to a copy of a screen capture which is exhibited in an annex to the Complaint which discloses the existence of MX records for the disputed domain name which it argues suggests that Respondent is actively using the disputed domain name to send email communications. Complainant adds that this evidence suggests that Respondent likely intends to use the disputed domain name to host email addresses and send emails impersonating Complainant, likely for the purpose of conducting phishing schemes and defrauding Complainant’s business partners and/or customers. Such conduct does not create rights or legitimate interests under the Policy. See Maplebear Inc. DBA Instacart v. Host Master / Transure Enter. Ltd, FA1895548 (Forum June 24, 2020) (“While Complainant offers no evidence that Respondent is using the disputed domain name to pass off as Complainant, [it] notes that the domain name has been set up with an email enabling MX record. Based upon this, Complainant contends that Respondent likely intends to use email addresses hosted by the disputed domain name to confuse or defraud Internet users. Considering the facts and arguments provided by the Complainant, the Panel agrees, and finds that Respondent does not use the domain name for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Finally, Complainant contends that previous panels established under the Policy have held that there can be no rights or legitimate interest under Policy ¶ 4(c)(ii) when a respondent had notice that the complainant possesses strong trademark rights in a mark identical or similar to the disputed domain name. See Charter Commc’ns Holding Co., LLC v. Hostpane Web Hosting/Hostpane.com, FA1841062 (Forum May 24, 2019) (finding that registration of <charterspectrum-internet.com> demonstrated that respondent had notice of complainant’s strong trademark rights in CHARTER and CHARTER SPECTRUM).
As reflected by the first use dates in Complainant’s U.S. trademark registrations upon which it relies, Complainant first began using and developing rights in the SPECTRUM Marks in the United States since at least as early as 2014—several years prior to Respondent’s registration of the disputed domain name. Finally, Respondent also had constructive notice of Complainant’s prior trademark rights in the SPECTRUM and SPECTRUM INTERNET marks through Complainant’s exhibited incontestable federal U.S. trademark registrations.
Complainant next alleges that the disputed domain name was registered and is being used in bad faith arguing that registration of a domain name that is confusingly similar to another’s mark, despite constructive knowledge of the mark holder’s rights, constitutes bad faith registration and use pursuant to ¶ 4(a)(iii). See Charter Commc’ns Holding Co. v. MIZHAR salem, FA1774836 (Forum Apr. 4, 2018) (finding bad faith in registration of <charterspectrumonline.com> because “[a]ctual knowledge of a complainant’s rights in a mark prior to registering a confusingly similar domain name can evidence bad faith under Policy ¶ 4(a)(iii).”).
Complainant submits that at the time the disputed domain name was registered, Respondent had constructive notice of Complainant’s registrations for the SPECTRUM and SPECTRUM INTERNET marks and other marks incorporating the element SPECTRUM. See Belo Corp. v. George Latimer, D2002-0329 (WIPO May 16, 2002) (finding that registration of <providencejournal.com> demonstrated that respondent had notice of complainant’s strong trademark rights in THE PROVIDENCE JOURNAL and PROVIDENCE JOURNAL).
Moreover, Complainant contends that Respondent likely commercially benefits from the disputed domain name by diverting Internet users looking for Complainant and its products and services to Respondent’s website and profiting from the associated pay-per-click advertising located on the resolving website. Panels have routinely found bad faith use and registration where a respondent engages in this type of disruptive conduct. State Farm Mut. Auto. Insur. Co. v. Jones, FA1909320 (Forum Sept. 21, 2020) (“Use for competing pay per click links indicates bad faith being disruptive of the Complainant’s business and diverting customers for commercial gain and also indicates actual knowledge of the Complainant and its business.”).
Also indicative of Respondent’s bad faith, Respondent is currently offering the disputed domain name for sale on the website to which it resolves. See Citigroup Inc. v. Kevin Goodman, FA1623939 (Forum July 11, 2015) (where the evidence showed that the respondent registered the disputed domain name primarily for the purpose of transferring it for a profit demonstrates the respondent’s bad faith registration and use of the disputed domain name).
Moreover, even though the website associated with the disputed domain name does not provide any legitimate service to customers, Respondent has configured the disputed domain name to send and receive email communications, as demonstrated by the MX records shown in a screen capture of the record exhibited in an annex to the Complaint. Prior panels have found that similar evidence leads to an inference that the registrant has registered and is using the domain name in bad faith, such as to send emails impersonating the complainant and conduct illegal phishing schemes. See, e.g., Vanguard Trademark Holdings USA LLC v. Rodrigues / Fundacion Comercio Electronico, FA1940361 (Forum May 3, 2021) (“Also of concern is that it has not been denied that Respondent has taken affirmative steps to set up MX records for the disputed domain name, as shown in the screen captures of the MX lookup search exhibited in an annex to the Complaint. This panel finds, agreeing with Complainant that email capability is not needed for parked domains and leads to an inference of bad faith intent.”).
Complainant also submits that Respondent has demonstrated bad faith by engaging in a pattern of conduct of registering numerous domain names that are based on third-party trademarks and brand names. Indeed, a Reverse WHOIS search for Respondent’s email address milen.radumilo@gmail.com returned over 137,000 hits—including many domain names based on well-known marks. A representative sample of other domain names affiliated with Respondent is provided in the Complaint, supported by a screen capture showing the first 1,000 hits in the Reverse WHOIS search for Respondent’s email address.
Complainant further argues that Respondent has already been the subject of numerous domain name disputes, the overwhelming majority of which found Respondent to have registered and used the at-issue domains names in bad faith. Attached to the Complaint is a screenshot from Forum’s Domain Name Dispute Proceedings & Decisions database identifying 71 UDRP proceedings since 2016 in which Respondent “Milen Radumilo” was named as a respondent in the dispute. Every single one of these proceedings resulted in adverse rulings against Respondent, with the Panels ordering transfer of the domain names at issue based on findings of bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Complainant is a telecommunications company providing services under the SPECTRUM service mark for which it owns a large portfolio of service mark registrations including the following in the United States of America:
· SPECTRUM, registration number 6,311,602, on the Principal Register on April 6, 2021 for services in international classes 37 and 42;
· SPECTRUM INTERNET, registration number 5,098,550, registered on the Principal Register on December 13, 2016, for services in international classes 37 and 38;
· SPECTRUM BUSINESS Internet, registration number 5,014,772, registered on the Principal Register on August 2, 2016 for services in international classes 38 and 42;
· SPECTRUM GUIDE 4,956,860 registered on the Principal Register on May 10, 2016 for services in international class 38;
· SPECTRUM BUSINESS 5,172,050, registered on the Principal Register on March 28, 2017 for services in international class 37;
· SPECTRUM BUSINESS TV, registration number 4,952,769, registered on the Principal Register on May 3, 2016, for services in international class 38;
· SPECTUM REACH, registration number 5,101,071, registered on the Principal Register on December 13, 2016 for services in international classes 35 and 41;
· SPECTRUM VOICE, registration number 5,098,473, registered on the Principal Register on December 13, 2016 for services in international classes 37 and 38.
Complainant has an established Internet presence and maintains its principal website at <www.spectrum.com> which provides marketing information about its Internet services offered under the SPECTRUM INTERNET mark.
The disputed domain name <spectrum-internet.info> was registered on September 17, 2022 and resolves to a website on which the disputed domain name is offered for sale and also appears to offer Internet visitors links to “cable Internet phone packages”, “specrum (sic) Internet” and “Analysis of Data” and inter alia inviting Internet visitors to “Enter Zip Code – Compare Internet Companies – In Your Area (by Zip Code)” as well as links to well-known corporations in the USA that offer home Internet services.
There is no information available about Respondent, except for that provided in the Complaint, the Registrar’s WhoIs and the information provided by the Registrar in response to the request by Forum for verification of the registration details of the disputed domain name. Respondent has used a privacy service to conceal his or her identity on the Registrar’s published WhoIs, and the Registrar has confirmed that Respondent is the registrant of the disputed domain name.
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”).
Complainant has provided convincing evidence that rights in the SPECTRUM and SPECTRUM INTERNET marks, established by the ownership of the portfolio of trademark registrations described above by itself and its wholly owned subsidiary and its use of the mark in its media services business.
The disputed domain name <spectrum-internet.info> consists of the SPECTRUM and SPECTRUM INTERNET marks in their entirety and the generic Top Level Domain (“gTLD”) extension <.info>. It is identical to the SPECTRUM INTERNET mark with the addition of a hyphen.
In the circumstances of this proceeding, neither the hyphen nor the gTLD extension <.com> prevent a finding of confusing similarity. The hyphen would be ignored by Internet users, placed as it is to separate the two words “spectrum” and “internet” and the gTLD <.info> extension would be considered a necessary technical requirement for a domain name registration,
This Panel finds therefore that the disputed domain name is confusingly similar to the SPECTRUM and SPECTRUM INTERNET marks in which Complainant has rights and Complainant has therefore succeeded in the first element of the test in Policy ¶ 4(a)(i).
Complainant has made out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name arguing that
· there is no evidence that Respondent is commonly known by the disputed domain name;
· Complainant has not given Respondent permission to use the SPECTRUM and SPECTRUM INTERNET marks – lack of consent supports a finding that Respondent has no legitimate interests in the disputed domain name;
· the screen capture of the website to which the disputed domain name resolves which has been exhibited in an annex to the Complaint shows that Respondent is using the disputed domain name to redirect to competitor’s websites through pay-per-click advertisements which is insufficient to establish that Respondent has rights or legitimate interests in the disputed domain name;
· the exhibited screen capture also shows that Respondent uses the resolving webpage to advertise the disputed domain name for sale which can be evidence of a lack of rights or legitimate interest in the disputed domain name;
· further screen captures which are exhibited in an annex to the Complaint disclose the existence of MX records for the disputed domain name which suggests that Respondent is actively using the disputed domain name to send email communications;
· this evidence suggests that Respondent likely intends to use the disputed domain name to host email addresses and send emails impersonating Complainant, likely for the purpose of conducting phishing schemes and defrauding Complainant’s business partners and/or customers and such conduct does not create rights or legitimate interests under the Policy;
· previous panels established under the Policy have held that there can be no rights or legitimate interest under Policy ¶ 4(c)(ii) when a respondent had notice that the complainant possesses strong trademark rights in a mark identical or similar to the domain name at issue and in the present case, Complainant first began using and developing rights in the SPECTRUM marks in the United States since at least as early as 2014—several years prior to Respondent’s registration of the disputed domain name and
· Respondent also had constructive notice of Complainant’s prior trademark rights in the SPECTRUM and SPECTRUM INTERNET marks through Complainant’s incontestable federal U.S. trademark registrations.
It is well established that once a complainant makes out a prima facie case that a respondent has no rights or legitimate interests in the domain name at issue, the burden of production shifts to the respondent to prove its rights or legitimate interests.
Respondent has failed to discharge that burden and therefore this Panel must find that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii).
Complainant has adduced clear and convincing, uncontested evidence that it has trademark and service mark rights in the SPECTRUM and SPECTRUM INTERNET marks which predate the registration and first use of the disputed domain name September 17, 2022.
The record shows that the SPECTRUM and SPECTRUM INTERNET marks are both distinctive and recognized in the marketplace as being associated with Complainant which uses the marks to provide services to over 32 million customers in the United States, with 96,000 employees in 41 states.
Given the distinctiveness, fame and strength of the Complainant’s marks it is implausible that the disputed domain name, in which the SPECTRUM mark is the initial and dominant element, and the SPECTRUM INTERNET mark to which the disputed domain name is almost identical, it is implausible that it was chosen and registered other than with Complainant’s marks and business in mind.
On the balance of probabilities it was chosen and registered with the intention of creating an inference that there is some relationship between the disputed domain name and Complainant, its marks and home internet service business.
On the balance of probabilities therefore, this Panel finds that the disputed domain name was registered in bad faith with the intention of targeting and taking predatory advantage of Complainant, its business and goodwill in the SPECTRUM and SPECTRUM INTERNET marks.
The uncontested evidence adduced by Complainant in the form of screen captures show that Respondent has no rights or legitimate interests in the disputed domain name; that Respondent is offering the disputed domain name for sale; that the website to which the disputed domain name resolves appears to have pay-per-click links to competitors of Complainant; that Respondent holds a large number of domain names which are confusingly similar to famous marks, and Respondent has been the unsuccessful respondent in numerous complaints under the policy, and worryingly the website invites Internet users to input their zip code to identify competing Internet providers in their region.
Also worryingly the disputed domain name has an established MX record which indicates that Respondent has taken active steps to use the disputed domain name for email correspondence.
This is not a only a case where Respondent is simply parking the confusingly similar domain name to attract unsuspecting Internet traffic. The evidence shows that the disputed domain name is being actively managed, to interfere with Complainant’s business, attract and divert Internet traffic, earn pay per-click revenue and possibly use the disputed domain name for the purposes of email correspondence.
In these circumstances, this Panel finds on the balance of probabilities that the disputed domain name was registered and is being used in bad faith.
As this Panel has found that the disputed domain name was registered and is being used in bad faith, Complainant has succeeded in the third element of the test in Policy paragraph 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 <spectrum-internet.info> domain name be TRANSFERRED from Respondent to Complainant.
James Bridgeman SC
Panelist
Dated: November 5, 2022
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