Charter Communications Holding Company, LLC v. Farhan Akbar
Claim Number: FA2301002026820
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Julie Kent of Holland & Hart LLP, Colorado. Respondent is Farhan Akbar (“Respondent”), PK.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <chartercables.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on January 9, 2023; Forum received payment on January 9, 2023.
On January 10, 2023, GoDaddy.com, LLC confirmed by e-mail to Forum that the <chartercables.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 January 11, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 31, 2023 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@chartercables.com. Also on January 11, 2023, 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 February 3, 2023, 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 over 32 million customers in the United States. With over 93,000 employees and service in 41 states, Complainant considers itself America’s fastest growing TV, internet, and voice company. Complainant asserts rights in the CHARTER mark based upon its registration in the United States in 1997.
Complainant alleges that the disputed domain name is confusingly similar to its CHARTER trademark because it incorporates the mark in its entirety and merely adds the generic/descriptive term “cables” and the generic top-level domain name (“gTLD”) “.com”. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s CHARTER mark and is not commonly known by the disputed domain name. Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the resolving website displays Complainant’s CHARTER and SPECTRUM marks and purports to offer services that compete with those of Complainant. Indeed, the resolving website purports to offer internet, WiFi, and mobile plans and television streaming services – the exact same services offered by Complainant – sometimes with the same plans offered by Complainant. For example, the resolving website offers the same three “Spectrum One” bundles advertised on Complainant’s website, with rates comparable to Complainant’s own pricing: an “INTERNET + WIFI + MOBILE” for $50.99/month, an “INTERNET ULTRA + WIFI + MOBILE” plan for $70.99/month, and an “INTERNET GIG + WIFI + MOBILE” plan for $90.99/month. The resolving website also displays information regarding Complainant’s “Affordable Connectivity Program,” which allows qualifying customers to save up to $30 per month on Complainant’s internet services. In addition, the resolving website copies all of the text from Complainant’s “Terms of Service / Policies” webpage. Respondent’s use of Complainant’s CHARTER and SPECTRUM marks, and numerous direct references to Complainant’s offerings are clearly intended to mislead consumers into believing they have arrived at either Complainant’s legitimate website or that of an authorized retailer of Complainant’s services. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent disrupts Complainant’s business by offering competing services. Respondent attempts passing off as Complainant for commercial gain. Respondent had actual and/or constructive knowledge of Complainant’s rights in the CHARTER mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has registered trademarks for the mark CHARTER and uses it to provide telecommunication services. The mark was registered in 1997.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name was registered in 2022.
The resolving website misleadingly suggests association with Complainant and purports to offer competing service. The resolving website displays Complainant’s marks and material copied from Complainant’s legitimate website.
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 disputed domain name incorporates Complainant’s CHARTER mark in its entirety and merely adds the generic/descriptive term “cables” and the generic top-level domain name (“gTLD”) “.com”. The addition of a generic term and gTLD is insufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Am. Express Co. v. MustNeed.com, FA 257901 (Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)). Therefore the Panel finds that the <chartercables.com> domain name is confusingly similar to Complainant’s CHARTER mark under Policy ¶ 4(a)(i).
Respondent is not licensed or otherwise authorized to use Complainant’s CHARTER mark and 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 the disputed domain name. See Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the <guardair.com> domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name). Here, the WHOIS information for the disputed domain name lists the registrant as “Farhan Akbar”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant provides evidence showing that the resolving website displays Complainant’s marks and is intended to mislead consumers into believing they have arrived at either Complainant’s legitimate website or that of an authorized retailer of Complainant’s services; the resolving website purports to offer services that compete with those of Complainant. This is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Nokia Corp. v. Eagle, FA 1125685 (Forum Feb. 7, 2008) (finding the respondent’s use of the disputed domain name to pass itself off as the complainant in order to advertise and sell unauthorized products of the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)); see also Charter Commc’ns Holding Co., LLC v. Chandon Kumar, FA1800637 (Forum Sept. 7, 2018) (“The disputed domain name incorporated Complainant’s registered mark without authorization, and is being used for a website that mimics Complainant’s website in a manner obviously designed to mislead Internet users. Such use does not give rise to rights or legitimate interests under the Policy.”); see also General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (“use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Thus, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(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 misleadingly suggests association with Complainant and purports to offer competing service. This is evidence of bad faith registration and use under Policy ¶¶ 4(b)(iii) and (iv). See Charter Commc’ns Holding Co., LLC v. Ido Talmon, FA1841056 (Forum May 25, 2019) (finding respondent’s registration of <wwwspectrum.com> was in bad faith where respondent displayed the complainant’s mark, information on the complainant, and intended to confuse consumers into believing respondent was affiliated with complainant); see also Charter Commc’ns Holding Co., LLC v. Webdesk Two, FA1800636 (Forum Sept. 5, 2018) (finding bad faith in registration of <spectrumpack.com> because “[u]se of a domain name to create a false impression of affiliation with a complainant in order to compete with and disrupt the complainant’s business is behavior indicative of bad faith registration and use per Policy ¶¶ 4(b)(iii) and (iv).”); see also DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also American Cheerleader Media, LLC. v. ilir shoshi / cheer, FA 1592319 (Forum Jan. 20, 2015) (“The Panel here finds that Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv) as … Respondent utilizes a logo and stylized font identical to Complainant’s own, as well as Complainant’s copyrighted images and text in an attempt to pass itself off as Complainant.”). Thus the Panel finds Respondent registered and uses the disputed domain name in bad faith per Policy ¶¶ 4(b)(iii) and (iv).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website displays Complainant’s marks and material copied from Complainant’s legitimate website. 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 <chartercables.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: February 3, 2023
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