Charter Communications Holding Company, LLC v. Justufa Ariola
Claim Number: FA2305002046174
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Julie Kent of Holland & Hart LLP, Colorado, USA. Respondent is Justufa Ariola (“Respondent”), Germany.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spectrum-internet-speed-at-my-address.cfd>, registered with PSI-USA, Inc. dba Domain Robot.
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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to Forum electronically on May 25, 2023; Forum received payment on May 25, 2023.
On May 30, 2023, PSI-USA, Inc. dba Domain Robot confirmed by e-mail to Forum that the <spectrum-internet-speed-at-my-address.cfd> domain name is registered with PSI-USA, Inc. dba Domain Robot and that Respondent is the current registrant of the name. PSI-USA, Inc. dba Domain Robot has verified that Respondent is bound by the PSI-USA, Inc. dba Domain Robot 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 30, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 20, 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-internet-speed-at-my-address.cfd. Also on May 30, 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 24, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons 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 asserts trademark rights in SPECTRUM. It holds a national registration for that trademark and asserts that the domain name is confusingly similar to the trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant alleges that the Respondent registered and used the disputed domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The factual findings pertinent to the decision in this case are that:
1. Complainant is a telecommunications company providing services under the mark, SPECTRUM, which is registered with the United States Patent & Trademark Office (“USPTO”) as Reg. No. 6,311,602, from April 6, 2021;
2. the disputed domain name was registered on April 5, 2023, using a privacy service but the Registrar has revealed the name of the underlying domain name holder (Respondent) as that of ‘Justufa Ariola’;
3. the disputed domain name resolves to a webpage with a link back to Complainant and links to services similar to those provided by Complainant offered by third parties; and
4. there is no relationship between the parties and Complainant has not authorized Respondent to use its trademark or to register any domain name incorporating its trademark.
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 formal 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.
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry—a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.
It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights (see, for example, Mothers Against Drunk Driving v. phix, FA 174052 (Forum Sept. 25, 2003). Complainant provides evidence of its registration of SPECTRUM with the USPTO, a national trademark authority, and has thus established rights in that mark.
The disputed domain name combines the trademark with the descriptive phrase, “internet speed at my address”, and the gTLD, “.cfd”. The Panel is satisfied that the trademark forms the dominant and memorable part of the disputed domain name and so finds the domain name to be confusingly similar to the trademark (see, for example, Blue Cross and Blue Shield Association v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs.”); Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”)).
The Panel finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests (see, for example, Do The Hustle, LLC v. Tropic Web, Case No. D2000‑0624 (WIPO Aug. 21, 2000).
There is no suggestion that Respondent might be commonly known by the disputed domain name, nor that Respondent has any trademark rights. The Panel accepts as more likely than not to be true, Complainant’s submission that Respondent benefits financially from the links appearing at the resolving webpage, most probably via click-through referral fees. Such use is not a bona fide offering of goods or services per Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under paragraph 4(c)(iii) of the Policy.
The Panel finds that a prima facie case has been made that Respondent lacks rights or a legitimate interest in the disputed domain name (see, for example, Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”); Fox News Network, LLC v. Reid, D2002-1085 (WIPO Feb. 18, 2003) finding that the respondent’s use of the disputed domain name to generate revenue via advertisement and affiliate fees is not a bona fide offering of good or services).
The onus thus shifts to Respondent. Absent a Response that onus is not met and so the Panel finds that Complainant has satisfied the second limb of the Policy.
Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and used in bad faith.
Paragraph 4(b)(iv) of the Policy circumscribes registration and use of a domain name in bad faith as follows:
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent’s website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the site or location.
The Panel finds that paragraph 4(b)(iv) of the Policy has direct application to this case and so finds that the third and final element of the Policy is satisfied (see, for example, MySpace, Inc. v. Myspace Bot, FA 672161 (Forum May 19, 2006) holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme; Tumblr, Inc. v. Ailing Liu, FA1402001543807 (Forum Mar. 24, 2014) (“Bad faith use and registration exists under Policy ¶ 4(b)(iv) where a respondent uses a confusingly similar domain name to resolve to a website featuring links and advertisements unrelated to complainant’s business and respondent is likely collecting fees.”); Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting).
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-internet-speed-at-my-address.cfd> domain name be TRANSFERRED from Respondent to Complainant.
Debrett G. Lyons, Panelist
Dated: June 26, 2023
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