Charter Communications Holding Company, LLC v. John Cena
Claim Number: FA2304002041695
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Julie Kent of Holland & Hart LLP, Colorado, USA. Respondent is John Cena (“Respondent”), Arkansas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spectrumbundleoffers.online>, registered with GoDaddy.com, 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 April 25, 2023; Forum received payment on April 25, 2023.
On April 26, 2023, GoDaddy.com, LLC confirmed by e-mail to Forum that the <spectrumbundleoffers.online> 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 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@spectrumbundleoffers.online. 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 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 101,000 employees and service in 41 states, Complainant considers itself America’s fastest growing TV, internet, and voice company. Complainant asserts rights in the SPECTRUM trademark through its registration in the United States in 2021.
Complainant alleges that the disputed domain name is identical or confusingly similar to its SPECTRUM mark as it incorporates the mark in its entirety and merely adds the generic/descriptive terms “bundle” and “offers” together with the “.com” generic top-level-domain name ("gTLD").
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Respondent been authorized by Complainant to use the SPECTRUM mark. Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate non-commercial or fair use. Instead, the resolving website mimics Complainant’s legitimate website and purports to offer counterfeit versions of Complainant’s products for sale on an unauthorized basis. The resolving websites falsely claim to be a SPECTRUM “Authorized Retailer” for Complainant, which is not the case. Respondent’s website provides no legitimate service to consumers, and there is no evidence that Respondent is operating a legitimate business, or any business at all. For example, many of the links on Respondent’s website—including the links to the “Mobile,” “Packages,” and “Free Quote” menu items—redirect to nonexistent webpages, and the multiple buttons throughout Respondent’s website inviting customers to connect with Respondent by phone appear to be non-functional. The resolving website invites users to enter personal information, and Respondent configured the disputed domain name to send and receive email communications.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent’s website disrupts Complainant’s business as Respondent registered the disputed domain name to pass off as Respondent and purport to counterfeit products competing with Complainant. Respondent disrupts Complainant’s business as Respondent is attracting and misleading users to Respondent’s website for Respondent’s financial gain. Respondent had actual knowledge of Complainant’s rights in the SPECTRUM mark prior to registration of the disputed domain name. The disputed domain name is used in furtherance of phishing.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark SPECTRUM dating back to at least 2021 and uses it to offer telecommunications services.
The disputed domain name was registered in 2023.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website mimics Complainant’s legitimate website, displaying Complainant’s mark and logo. It purports to offer counterfeit versions of Complainant’s services, and invites users to enter personal information.
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 SPECTRUM mark in its entirety and merely adds the generic/descriptive terms “bundle” and “offers” together with the “.com” generic top-level-domain name ("gTLD"). The addition of a generic or descriptive term and a gTLD fails sufficiently to distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Morgan Stanley v. Eugene Sykorsky / private person, FA 1651901 (Forum Jan. 19, 2016) (concluding that the addition of a generic term and top level domain to a trademark is inconsequential under a Policy ¶ 4(a)(i) analysis.); see also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Respondent is not licensed or otherwise authorized to use Complainant’s SPECTRUM mark in any way 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 known by the disputed domain name. See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Here, the WHOIS information for the disputed domain name identifies the registrant as “John Cena”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant presents evidence showing that Respondent uses the disputed domain name to pass off as Complainant (the resolving website mimics Complainant’s legitimate website and displays Complainant’s mark and logo) and advertise counterfeit versions of Complainant’s products for sale on an unauthorized basis. Using a disputed domain name to pass off as a complainant for the purpose of the unauthorized sale of counterfeit versions of a complainant’s products may not be a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (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 Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Russell & Bromley Limited v. Li Wei Wei, FA 1752021 (Forum Nov. 17, 2017) (“The respondent’s use of the disputed domain name to pass itself off as the complainant to advertise and sell unauthorized products of the complainant is 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).”). The Panel therefore 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 per Policy ¶¶ 4(c)(i) or (iii).
Complainant notes that MX records have been configured for the disputed domain name and alleges that this indicates that it could be used in furtherance of phishing. However, Complainant does not present any evidence showing that the disputed domain name was actually used in emails. Thus the Panel finds that Complainant has failed to satisfy its burden of proof for this allegation and will not further discuss it.
However, the resolving website invites users to enter personal information. Given that, as noted above, users might be confused into believing that the resolving website is associated with Complainant, this constitutes phishing, which is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Therefore, on this ground also, 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 per Policy ¶¶ 4(c)(i) or (iii).
For all the above reasons, 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, Respondent uses the disputed domain name to pass off as Complainant and purport to sell counterfeit versions of Complainant’s services. This is indicative of bad faith registration and use per Policy ¶ 4(b)(iv). See H-D Michigan, LLC v. Ross, FA 1250712 (Forum Apr. 23, 2009) (determining that the respondent’s selling of counterfeit products creates the likelihood of confusion as to the complainant’s affiliation with the disputed domain name and allows the respondent to profit from that confusion and thus demonstrates bad faith per Policy ¶ 4(b)(iv)); see also Affliction, Inc. v. Chinasupply, FA 1223521 (Forum Oct. 23, 2008) (finding that the respondent attempts to commercially gain and thus demonstrating bad faith per Policy ¶ 4(b)(iv) by creating confusion as to the complainant’s connection with the website by selling counterfeit products). The Panel therefore finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Further, also as already noted, the resolving website is used in furtherance of a phishing scheme. This constitutes bad faith registration and use under Policy ¶ 4(a)(iii). See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1506001622862 (Forum Aug. 10, 2015) (finding that the respondent’s apparent use of the disputed domain name in furtherance of a ‘phishing’ scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)). Thus the Panel finds bad faith registration and use under 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. 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 <spectrumbundleoffers.online> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: May 23, 2023
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