Charter Communications Holding Company, LLC v. Polyakov Andrey
Claim Number: FA2301002026823
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Julie Kent of Holland & Hart LLP, Colorado, USA. Respondent is Polyakov Andrey (“Respondent”), Ukraine.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spectrum-tv-app.net>, (‘the Domain Name’) registered with NameCheap, Inc..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to Forum electronically on January 9, 2023; Forum received payment on January 9, 2023.
On January 10, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <spectrum-tv-app.net> 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 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@spectrum-tv-app.net. 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 Dawn Osborne 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
The Complainant’s contentions can be summarized as follows:
The Complainant owns a number of marks including SPECTRUM registered in the USA for telecommunications services with first use recorded as 2013.
The Domain Name registered in 2022 has been used for a site which purports to be an official site of the Complainant using the Complainant’s logo as a masthead.
The Domain Name is confusingly similar to the Complainant’s trademarks, containing SPECTRUM in its entirety, adding only the generic abbreviations ‘tv’ and ‘app’, hyphens and a gTLD “.net” which do not distinguish the Domain Name from the Complainant’s mark.
The Respondent is not commonly known by the Domain Name and has not been authorized by the Complainant to use its mark.
Purporting to be an official site of the Complainant to offer competing services is not a bona fide offering of goods or services or a legitimate noncommercial fair use. It is disruptive and causing confusion on the Internet and is registration and use in bad faith contrary to Policy 4(b)(iii) and (iv). Use of the Complainant’s logo shows the Respondent is aware of the Complainant and its business.
The Respondent has registered a number of Domain Names including the third party trademarks of others and has been the subject of a number of adverse decisions under the UDRP including prior decisions including the Complainant’s SPECTRUM mark showing a bad faith pattern of activity.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant owns a number of marks including SPECTRUM registered in the USA for telecommunications services with first use recorded as 2013.
The Domain Name registered in 2022 has been used for a site purporting to be an official site of the Complainant using the Complainant’s logo as a masthead. The Respondent has registered a number of Domain Names including the third party trademarks of others and has been the subject of a number of adverse decisions under the UDRP including prior decisions including the Complainant’s SPECTRUM mark.
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 Domain Name consists of a sign confusingly similar to the Complainant's SPECTRUM related mark (registered in a number of trade marks in the USA for telecommunications services with first use recorded as 2013), the generic abbreviations ‘tv’ and ‘app’, hyphens and the gTLD “.net”.
Previous panels have found confusing similarity when a respondent merely adds generic terms to a Complainant's mark. See PG&E Corp. v. Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underling mark held by the Complainant). The Panel agrees that the addition of the generic abbreviations ‘tv’ and ‘app’ to the Complainant's SPECTRUM mark does not distinguish the Domain Name from the Complainant's trademarks.
The Panel agrees that the addition of hyphens to the Complainant's SPECTRUM mark does prevent confusing similarity between the Domain Name and that trade mark pursuant to the Policy. See Health Devices Corp. v. Aspen STC, FA 158254 (Forum July 1, 2003) (The addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy 4(a)(i).).
The gTLD “.net” does not serve to distinguish a Domain Name from a Complainant’s mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s SPECTRUM mark.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorized the use of its SPECTRUM mark. There is no evidence or reason to suggest the Respondent is, in fact, commonly known by the 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). The use of the Domain Name is commercial so cannot be legitimate noncommercial fair use.
The web site attached to the Domain Name uses the Complainant's SPECTRUM mark in its logo form as a masthead so that the Respondent’s site appears to be an official site of the Complainant. It does not make it clear that there is no commercial connection with the Complainant. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. See Am. Intl Group Inc. v. Benjamin, FA 944242 (Forum May 11, 2007) (finding that the Respondent's use of a confusingly similar domain name to advertise services which competed with the Complainant's business did not constitute a bona fide use of goods and services.).
The Respondent has not provided any response or provided any explanation to counter the prima facie case presented by the Complainant as set out herein.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the panelist the use made of the Domain Name in relation to the Respondent’s site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it uses the Complainant’s SPECTRUM mark in its logo form as a masthead to purport to be an official site of the Complainant offering telecommunications services without permission. The use of the Complainant's logo shows that the Respondent is aware of the Complainant and its business.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the web site and services offered on it likely to disrupt the business of the 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).
Finally the Complainant has brought evidence that the Complainant is the subject of previous UDRP Complaints in which the Complainant was successful against the Respondent. There is also other evidence that the Respondent has been the subject of adverse rulings in the UDRP process involving third parties not connected to this Complaint. Accordingly there is evidence of a pattern of bad faith registrations on the part of the Respondent. See The Toronto-Dominion Bank v. Ryan G Foo/PPA Media Services/Jinesh Shah/WhoIs Privacy Corp, FA 1408001576648 (Forum Jan. 12, 2015) (‘The Panel determines that Respondent’s documented history of adverse UDRP rulings as well as Respondent’s multiple registrations relating to Complainant’s marks are independently sufficient to constitute a pattern as described by Policy 4(b)(ii).).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(ii), (iii) and (iv).
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-tv-app.net> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: February 3, 2023
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