Charter Communications Holding Company, LLC v. Daniyal Moosa
Claim Number: FA2211002018770
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Julie Kent of Holland & Hart LLP, Colorado, USA. Respondent is Daniyal Moosa (“Respondent”), Pakistan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spectrum-billing-services.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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on November 2, 2022; Forum received payment on November 2, 2022.
On November 3, 2022, NameSilo, LLC confirmed by e-mail to Forum that the <spectrum-billing-services.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 November 7, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 28, 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-billing-services.com. Also on November 7, 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 December 2, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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 states that it is a telecommunications company providing services to more than 32 million customers in the United States. With 96,000 employees and service in 41 states, Complainant considers itself America’s fastest growing TV, internet, and voice company. Complainant has rights in the SPECTRUM mark through its registration in the United States in 2021 (filing date 2018).
Complainant alleges that the disputed domain name is identical or confusingly similar to its SPECTRUM mark because it incorporates the mark in its entirety, merely adding hyphens, the generic term “billing services”, 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 domain name nor has Respondent been authorized to use Complainant’s mark. Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use because Respondent uses the disputed domain name to purport to offer competing services. Specifically, the resolving website displays Complainant’s mark and logo, and copyrighted images, proprietary content, and photographs from Complainant’s own websites. The resolving website purports to offer SPECTRUM-branded billing plans and promotions—the same services offered by Complainant. Respondent falsely claims to be a “Partner” of Complainant, which it is not. Many of the links on the resolving website are entirely non-functional, such as the “Call Now” button that appears in the top right corner of every webpage and various “Read More” buttons appearing throughout the website; similarly, the links displayed for Facebook, Twitter, Instagram, and LinkedIn do not actually redirect to any social media webpage, thus providing no legitimate use to visiting consumers. Rather, Respondent is likely using (or intending to use) the disputed domain name and resolving website in furtherance of a phishing scheme: the disputed domain name does have active mail exchanger (“MX”) records.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith because Respondent purports to offer competing services. Respondent engages, or intends to engage, in phishing. Respondent acted with actual or constructive knowledge of Complainant’s rights in the SPECTRUM mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark SPECTRUM dating back to at least 2018 and uses it to offer telecommunications services.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website displays Complainant’s mark and logo and purports to offer services that compete with those of Complainant. Many of the links on the resolving website are not functional; there are MX records associated with 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”).
The relevant date for Complainant’s SPECTRUM mark is the filing date, which was in 2018. See Lenovo (Beijing) Limited Corporation China v. jeonggon seo, FA 1591638 (Forum Jan. 16, 2015) (finding Complainant has rights in the LENOVO mark dating back to the February 20, 2003 filing date with the USPTO as the trademark application was ultimately successful); see also Hershey Co. v. Reaves, FA 967818 (Nat. Arb. Forum June 8, 2007) (finding that the complainant’s rights in the KISSES trademark through registration of the mark with the USPTO “date back to the filing date of the trademark application and predate [the] respondent’s registration”).
The disputed domain name incorporates Complainant’s SPECTRUM mark in its entirety, merely adding hyphens, the generic term “billing services”, and the “.com” generic top-level domain (“gTLD”). A domain name may be identical or confusingly similar to a complainant’s mark, under Policy ¶ 4(a)(i), despite the addition of hyphens, generic terms, and of a TLD. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).); see also Mrs. World Pageants, Inc. v. Crown Promotions, FA 94321 (Forum Apr. 24, 2000) (finding that punctuation is not significant in determining the similarity of a domain name and mark); see also Health Devices Corp. v. Aspen S T C, FA 158254 (Forum July 1, 2003) (“[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶ 4(a)(i).”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s 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: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by a domain name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). Here, the WHOS information lists the registrant as “Daniyal Moosa”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ (c)(ii).
The resolving website purports to offer services that compete with those of Complainant. Use of a domain name to offer competing services may be evidence of a domain name not being used in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (Iii). See Fadal Engineering, LLC v. DANIEL STRIZICH,INDEPENDENT TECHNOLOGY SERVICE INC, FA 1581942 (Forum Nov. 13, 2014) (finding that Respondent’s use of the disputed domain to sell products related to Complainant without authorization “does not amount to 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).”). Therefore 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 under Policy ¶¶ 4(c)(i) and (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
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 purports to offer services that compete with those of Complainant. Bad faith may be found, under Policy ¶ 4(b)(iv), where a respondent uses a domain name to offer services that compete with a complainant. See Asbury Auto Group Inc v Tex. Int'l Prop Assocs FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to compete with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of a competing business and was therefore evidence of bad faith and use); see also See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). Therefore the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Further, Respondent has configured the disputed domain name to send and receive email communications. 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 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.”). Here, the resolving website is not a parked page, but it contains many links that are not functional. The Panel finds, on the balance of the evidence, that Respondent likely intends to use the disputed domain name in furtherance of a phishing scheme. The Panel therefore finds that Respondent registered and uses the disputed domain name in bad faith per Policy 4(a)(iii).
Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website displays Complainant’s mark and logo and material copied from Complainant’s legitimate websites. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under 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-billing-services.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: December 3, 2022
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