Charter Communications Holding Company, LLC v. Hussnian Zeb / iexperts360
Claim Number: FA2305002044619
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Julie Kent of Holland & Hart LLP, Colorado, USA. Respondent is Hussnian Zeb / iexperts360 (“Respondent”), Pakistan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bestspectrumdeals.online>, (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 May 15, 2023; Forum received payment on May 15, 2023.
On May 15, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <bestspectrumdeals.online> 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 May 17, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 6, 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@bestspectrumdeals.online. Also on May 17, 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 June 7, 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 summarised as follows:
The Complainant owns the mark SPECTRUM registered in the USA for telecommunications services with first use recorded as 2021.
The Domain Name registered in 2023 has been used for a site which mimics an official site of the Complainant including the Complainant’s SPECTRUM mark used in the masthead. The Domain Name has been configured to be used for e mail.
The Domain Name is confusingly similar to the Complainant’s trade mark containing SPECTRUM in its entirety adding only the generic words ‘best’ and ‘deals’ and the gTLD .online 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 authorised by the Complainant to use its mark.
Mimicking an official site of the Complainant to purport 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). Since the links on the site don’t work an inference can be drawn that the site has been set up as a façade for phishing.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant owns the mark SPECTRUM registered in the USA for telecommunications services with first use recorded as 2021.
The Domain Name registered in 2023 has been used for a site purporting to be an official site of the Complainant mimicking the Complainant’s site and using the Complainant’s logo in its masthead.
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 mark (registered in USA for telecommunications services with first use recorded as 2021), the generic words ‘best’ and ‘deals’ and the gTLD .online.
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 words ‘best’ and ‘deals’ to the Complainant's SPECTRUM mark does not prevent confusing similarity between the Domain Name and the Complainant's registered trade mark pursuant to the Policy.
The gTLD .online 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 registered 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 authorised the use of its mark. From the WhoIs database details the Respondent does not appear to be commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 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 web site attached to the Domain Name has copied material from the Complainant’s web site and uses the Complainant’s logo as a masthead so that the Respondent’s site appeared to be an official site of the Complainant. It does not make it clear that there is no connection with the Complainant. The Panel finds this use is deceptive and passing off. As such it cannot amount to the bona fide offering of goods and services. See iFinex Inc. v Yuri Heifetz/Genie-Solution, FA 1789385 (Forum July 9, 2018)(holding that the respondent’s mimicking the complainant’s web site in order to cause existing or potential customers of the Complainant’s to believe they are dealing with the complainant is prima facie evidence of the respondent’s lack of rights and legitimate interests in the disputed domain name).
It is more likely than not, bearing in mind the deceptive nature of the web site discussed above and the fact that the links on it do not work, that the Domain Name has been registered for phishing which cannot be a bona fide or legitimate purpose. See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (“a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”).
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 material copied from the Complainant’s web site and the Complainant’s logo in its masthead to purport to be an official site of the Complainant showing that the Respondent is aware of the Complainant and its rights, business and services.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site or services on it likely to disrupt the business of the Complainant. See Allianz of AM. Corp v Bond, FA 680624 (Forum June 2, 2006)(finding bad faith registration and use where the respondent was diverting Internet users searching for the complainant to its own website).
Registering a domain name for the purposes of phishing is bad faith registration and use within the Policy 4(a)(iii). See Klabzuba Oil & Gas, Inc v LAKHPAT SINGH BHANDARI, FA 1506001625750 (Forum July 17, 2015).
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)(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 <bestspectrumdeals.online> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
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