Charter Communications Holding Company, LLC v. Andrey Polyakov
Claim Number: FA2304002040986
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Corsearch, Inc., Texas, USA. Respondent is Andrey Polyakov (“Respondent”), Ukraine.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <thespectrumtv.net>, 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.
Ho-Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to Forum electronically on April 20, 2023; Forum received payment on April 20, 2023.
On April 21, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <thespectrumtv.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 April 27, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 17, 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@thespectrumtv.net. Also on April 27, 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 May 23, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Ho-Hyun Nahm, Esq. 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
i) Complainant, Charter Communications Holding Company, LLC, is a telecommunications company providing cable television, Internet, phone, and related telecommunications services. Complainant asserts rights in the SPECTRUM TV mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,420,855, registered on March 13, 2018). The disputed domain name is confusingly similar to Complainant’s mark as it contains the SPECTRUM TV mark in its entirety, merely adding the generic term “the,” and the generic top-level domain (“gTLD”) “.net” to form the disputed domain name.
ii) Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s SPECTRUM TV mark and is not commonly known by the disputed domain name. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to pass off as Complainant. Furthermore, Respondent uses the disputed domain name to engage in an email phishing scheme.
iii) Respondent registered and uses the disputed domain name in bad faith. Respondent has shown a pattern of bad faith based on prior UDRP cases against Respondent. Respondent registered and uses the disputed domain name in competing with Complainant. Respondent registered and uses the disputed domain name to pass off as Complainant. Respondent’s inclusion of a disclaimer is insufficient to avoid bad faith. Respondent’s registration of the disputed domain name using a privacy shield to conceal its identity shows bad faith. Respondent registered and uses the disputed domain name to engage in an email phishing scheme. Respondent registered and uses the disputed domain name with actual knowledge of Complainant’s rights in the SPECTRUM TV mark.
B. Respondent
Respondent did not submit a response in this proceeding.
1. The disputed domain name was registered on July 21, 2022.
2. Complainant has established rights in the SPECTRUM TV mark based upon registration with the USPTO (e.g., Reg. No. 5,420,855, registered on March 13, 2018).
3. The disputed domain name’s resolving website displays Complainant’s SPECTRUM mark and SPECTRUM TV design logo, and offers services similar to those offered by Complainant.
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 claims rights in the SPECTRUM TV mark based upon registration with the USPTO (e.g., Reg. No. 5,420,855, registered on March 13, 2018). Registration of a mark with the USPTO demonstrates rights in such a mark per Policy ¶ 4(a)(i). Complainant has provided evidence of registration of the SPECTRUM TV mark with the USPTO. Therefore, the Panel finds Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant contends the disputed domain name <thespectrumtv.net> is identical or confusingly similar to Complainant’s mark. The addition of a generic term and a gTLD does not sufficiently differentiate a disputed domain name from a mark under Policy ¶ 4(a)(i). The disputed domain name incorporates the SPECTRUM TV mark in its entirety, merely adding the generic term “the,” and the generic top-level domain (“gTLD”) “.net” to form the disputed domain name. Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s SPECTRUM TV mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent does not have rights or legitimate interests in the disputed domain name as Respondent is not licensed or authorized to use Complainant’s SPECTRUM TV mark and is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed 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 unmasked WHOIS information for the disputed domain name lists the registrant as “Andrey Polyakov.” Therefore, the Panel finds Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant contends that Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Respondent uses the disputed domain name to pass off as Complainant. An attempt to use a disputed domain name to pass off as a complainant is neither a bona fide offering of goods or services per Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business); see also Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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).”). Complainant provides screenshots of the disputed domain name’s resolving website displaying Complainant’s SPECTRUM TV mark and SPECTRUM TV design logo, also displaying confusing and related hyperlinks. The Panel thus finds Respondent does not use the disputed domain name for any bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant contends Respondent registered and uses the disputed domain name to pass off as Complainant. The registration and use of a disputed domain name to attempt to pass off as a complainant for financial gain is evidence of bad faith registration and use per Policy ¶ 4(b)(iv). See The Prudential Insurance Company of America v. Henrique Bryan Souza / DATAMIX ENSINO DE INFORMATICA, FA 1718308 (Forum Apr. 3, 2017) (finding bad faith where the respondent used the disputed domain name to resolve to a website upon which the respondent imitated the complainant’s mark, logo, and color scheme to create a “strikingly similar” website); see also Target Brands, Inc. v. JK Internet Servs., FA 349108 (Forum Dec. 14, 2004) (finding bad faith because the respondent not only registered Complainant’s famous TARGET mark, but “reproduced . . . Complainant’s TARGET mark . . . [and] added Complainant’s distinctive red bull’s eye [at the domain name] . . . to a point of being indistinguishable from the original.”). Complainant provides screenshots of the disputed domain name’s resolving website displaying Complainant’s SPECTRUM mark, SPECTRUM TV design logo, and offering services similar to those offered by Complainant. Thus, the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii).
Complainant further contends that Respondent registered and uses the disputed domain name with actual knowledge of Complainant’s rights in the SPECTRUM TV mark. Complainant points to Respondent’s use of the SPECTRUM marks in the disputed domain name and on the website, the offering of the same type of services offered by Complainant, and Respondent’s UDRP history in a UDRP proceeding containing Complainant’s SPECTRUM marks. The Panel infers, due to the notoriety of Complainant’s mark and the manner of use of the disputed domain name that Respondent had knowledge of Complainant’s rights in the SPECTRUM TV mark at the time of registering the disputed domain name, and finds that Respondent registered the disputed domain in 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 <thespectrumtv.net> domain name be TRANSFERRED from Respondent to Complainant.
Ho-Hyun Nahm, Esq., Panelist
Dated: May 25, 2023
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page