DECISION

 

Charter Communications Holding Company, LLC v. abdelfattah darif

Claim Number: FA2403002088903

 

PARTIES

The Complainant is Charter Communications Holding Company, LLC ("Complainant"), represented by Julie Kent of Holland & Hart LLP, Colorado, USA. The Respondent is abdelfattah darif ("Respondent"), Morocco.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <spectrumiptvshop.com> ('the Domain Name'), registered with Hosting Concepts B.V. d/b/a Registrar.eu.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Dawn Osborne as Panelist.

 

PROCEDURAL HISTORY

The Complainant submitted a Complaint to Forum electronically on March 18, 2024; Forum received payment on March 18, 2024.

 

On March 22, 2024, Hosting Concepts B.V. d/b/a Registrar.eu confirmed by e-mail to Forum that the <spectrumiptvshop.com> Domain Name is registered with Hosting Concepts B.V. d/b/a Registrar.eu and that Respondent is the current registrant of the name. Hosting Concepts B.V. d/b/a Registrar.eu has verified that the Respondent is bound by the Hosting Concepts B.V. d/b/a Registrar.eu 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 March 25, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 15, 2024 by which the Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on the Respondent's registration as technical, administrative, and billing contacts, and to postmaster@spectrumiptvshop.com. Also on March 25, 2024, the Written Notice of the Complaint, notifying the Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to the Respondent via post and fax, to all entities and persons listed on the Respondent's registration as technical, administrative and billing contacts.

 

Having received no response from the Respondent, Forum transmitted to the parties a Notification of Respondent Default.

 

On April 16, 2024 pursuant to the 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 the Respondent.

 

RELIEF SOUGHT

The Complainant requests that the Domain Name be transferred from the Respondent to the Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

The Complainant owns the well known SPECTRUM mark registered in the USA for telecommunications/television services with first use recorded as 1993.

 

The Domain Name registered in 2023 has been used for a site which uses the Complainant's mark in its masthead and a similar layout to the official site of the Complaint to offer competing services.

 

The Domain Name is confusingly similar to the Complainant's trademark containing in its entirety adding only the generic term 'iptv' meaning internet protocol television, the generic term 'shop' and a gTLD 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.

 

Using the Complainant's mark as a masthead and a similar layout to the official site 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).

 

B. Respondent

The Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Complainant owns the SPECTRUM mark registered in the USA for telecommunications/television services with first use recorded as 1993.

 

The Domain Name registered in 2023 has been used on a site using the Complainant's mark in its masthead to offer competing services.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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 the Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of the 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.").

 

Identical and/or Confusingly Similar

The Domain Name consists of the Complainant's SPECTRUM mark (registered in USA for telecommunications services with first use recorded as 1993), the generic term 'iptv' meaning internet protocol television, the generic term 'shop' and the gTLD .com.

 

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 terms 'iptv' and/or 'shop' to the Complainant's mark does not distinguish the Domain Name from the Complainant's registered trademark pursuant to the Policy.

 

The gTLD .com 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 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. 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, FA 1574905 (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 is not legitimate non commercial fair use.

 

The website attached to the Domain Name uses the Complainant's SPECTRUM mark in its masthead to offer television services. 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 answered this Complaint and has not rebutted the prima facie case evidenced 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 masthead to sell television services. The use of the Complainant's established mark for competing services makes it more likely than not that the Respondent is aware of the Complainant and its business, rights and services.

 

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 trademark as to the source, sponsorship, affiliation or endorsement of the website and services offered 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). 

 

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 Paragraphs 4(b)(iii) and (iv).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <spectrumiptvshop.com> domain name be TRANSFERRED from the Respondent to the Complainant.

 

 

 

Dawn Osborne, Panelist

Dated: April 16, 2024