Charter Communication Holding Company, LLC v. muhammad / jahanzaib
Claim Number: FA2210002016506
Complainant is Charter Communication Holding Company, LLC (“Complainant”), represented by Corsearch, Inc., Texas, USA. Respondent is muhammad / jahanzaib (“Respondent”), Pakistan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spectrum.discount>, registered with NameCheap, 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to Forum electronically on October 18, 2022; Forum received payment on October 18, 2022.
On October 18, 2022, NameCheap, Inc. confirmed by e-mail to Forum that the <spectrum.discount> 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 October 24, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 14, 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.discount. Also on October 24, 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 18, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Bruce E. Meyerson 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
1. Complainant is an American telecommunications company founded in 1993. Complainant’s successful development has been accomplished through acquisition of cable properties and the increase of customers in those communities, as well as the development and launch of new products and services. With service in 41 states and 98,000 employees in the workforce, Complainant considers itself America’s fastest growing TV, internet and voice company with over 32 million customers to date. Complainant delivers a wide variety of TV, internet, phone and mobile services under the Spectrum brand such as: Spectrum TV, Spectrum Internet, Spectrum Voice and Spectrum Mobile. Complainant enjoys widespread consumer recognition and has spent millions of dollars in advertisement and promotion of the Marks on the Internet through its website located at SPECTRUM.COM and on digital, print, and national TV.
2. The <spectrum.discount>[1] domain name is confusingly similar to Complainant’s SPECTRUM mark as it contains the entire SPECTRUM mark and merely adds the “.DISCOUT” generic top level domain (“gTLD”).
3. Complainant asserts Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the domain name. Respondent is not using the domain name in connection with any bona fide offering of goods and services or for any legitimate or fair use because Respondent is passing off as Complainant on the resolving webpage.
4. Complainant argues Respondent registered and uses the <spectrum.discount> domain name in bad faith. Respondent is attempting to attract, for commercial gain, Internet users to Respondent’s own website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the content thereon.
5. Respondent disrupts Complainant’s business via the sale of products and services that compete with Complainant.
6. Additionally, Respondent had actual knowledge of Complainant’s rights in the SPECTRUM mark prior to registration of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the SPECTRUM mark. Respondent’s domain name is confusingly similar to Complainant’s SPECTRUM mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <spectrum.discount> domain name and that Respondent registered and uses the domain name 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 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 asserts rights in the SPECTRUM marks (e.g. Reg. No. 6,311,602, registered on January 1, 1993) based upon registration with the United States Patent and Trademark Office (“USPTO”). Registration with a governmental trademark authority is sufficient to demonstrate rights in a mark per Policy 4(a)(i). See Teleflex Incorporated v. Leisa Idalski, FA 1794131 (Forum July 31, 2018) (“Registration of a mark with governmental trademark agencies is sufficient to establish rights in that mark for the purposes of Policy ¶ 4(a)(i).”). Therefore, the Panel holds that Complainant has rights in the SPECTRUM marks per Policy ¶ 4(a)(i).
Next, Complainant contends that the <spectrum.discount> domain name is confusingly similar to Complainant’s SPECTRUM marks as it contains the entire SPECTRUM mark and merely adds the “.DISCOUNT” gTLD. The addition of a gTLD fails to sufficiently distinguish a domain name per Policy ¶ 4(a)(i). See The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) (“[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i).”). The Panel therefore finds that the <spectrum.discount> domain name is confusingly similar to Complainant’s marks per Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <spectrum.discount> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent.) The Panel holds that Complainant has made a prima facie case.
First, Complainant asserts that Respondent is not commonly known by the <spectrum.discount> domain name. Where there is no response, WHOIS information can substantiate a finding that a respondent is not commonly known by a domain name per Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). The Amended Complaint lists “Muhammad Jahanzaib” as the registrant of the domain name. Accordingly, Respondent is not commonly known by the <spectrum.discount> domain name per Policy ¶ 4(c)(ii).
Next, Complainant argues Respondent fails to use the <spectrum.discount> domain name in connection with a bona fide offering of goods and services or for any legitimate or fair use because Respondent implies a connection with Complainant by passing off as Complainant on the resolving webpage which displays “CHARTER SPECTRUM, SPECTRUM VOICE AND SPECTRUM AUTHORIZED RESELLER” and offers services for Internet, TV, and Phone that could mislead users into believing that the website is in connection with Complainant. Diverting Internet users who are seeking the Complainant’s website and passing off as the Complainant is not a bona fide offering of goods and services or a legitimate or fair use per Policy ¶ 4(c)(i) and (iii). 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 screenshot evidence of the resolving webpage. Therefore, the Panel holds that Respondent is passing off as Complainant per Policy ¶ 4(c)(i) and (iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant asserts that Respondent registered and uses the <spectrum.discount> domain name in bad faith because Respondent disrupts Complainant’s business via the sale of products and services that compete with Complainant. Disrupting a complainant’s business, through the use of a domain which incorporates a complainant’s mark, via sale of competing products indicates bad faith per Policy ¶ 4(b)(iii). See Zynex Medical, Inc. v. New Ventures Services, Corp, FA 1788042 (Forum July 2, 2018) (“The resolving webpage [] appears to display [competing] links such as “Electrical Stimulation” and “Physical Therapy Software.” Accordingly, the Panel agrees that Respondent disrupts Complainant’s business and attempted to commercially benefit off Complainant’s mark in bad faith under Policy ¶¶ 4(b)(iii) & (iv).”). Therefore, the Panel holds that Respondent registered the <spectrum.discount> domain name in bad faith per Policy ¶ 4(b)(iii).
Lastly, Complainant contends that Respondent registered the <spectrum.discount> domain name with actual knowledge of Complainant’s rights in the SPECTRUM mark. Complainant argues Respondent had actual knowledge of Complainant’s rights in the SPECTRUM mark by Respondent’s explicit use of the SPECTRUM mark in the domain name and on the website. Additionally, Respondent created a website offering the same type of services offered by the Complainant. Further, Complainant asserts it first used the SPECTRUM mark in 1993, well before Respondent registered the <spectrum.discount> domain name on September 3, 2022. Therefore, the Panel agrees that Respondent registered the <spectrum.discount> domain name in bad faith per Policy ¶ 4(a)(iii).
The Panel finds 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 <spectrum.discount> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: November 28, 2022
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