DECISION

 

Charter Communications Holding Company, LLC v. niche builder

Claim Number: FA2409002117245

 

PARTIES

Complainant is Charter Communications Holding Company, LLC ("Complainant"), represented by Julie Kent of Holland & Hart LLP, Colorado, USA. Respondent is niche builder ("Respondent"), India.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <panoramacharter.run>, registered with NameCheap, Inc.

 

PANEL

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.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on September 25, 2024; Forum received payment on September 25, 2024.

 

On September 25, 2024, NameCheap, Inc. confirmed by e-mail to Forum that the <panoramacharter.run> 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 September 26, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 16, 2024 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@panoramacharter.run. Also on September 26, 2024, 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 October 17, 2024, 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

i) Complainant, Charter Communications Holding Company, LLC, is a telecommunications company providing services to over 32 million customers in the United States under its CHARTER mark. Complainant has rights in the CHARTER mark through its registration with the United States Patent and Trademark Office (USPTO). The disputed domain name is confusingly similar to Complainant's CHARTER mark because it fully incorporates Complainant's CHARTER mark while adding the generic term "panorama" and the ".run" generic top-level domain (gTLD).

 

ii) Respondent does not have any rights or legitimate interests in the disputed domain name because Respondent is not commonly known by the domain name, nor has Respondent been authorized to use Complainant's CHARTER mark. Respondent is not using the domain name in connection with a bona fide offering of goods or services, nor for a legitimate noncommercial or fair use, because Respondent uses the disputed domain name to impersonate and falsely suggest an association with Complainant. The disputed domain name does not link to a mere informational site. Rather, the resolving website contains multiple pay-per-click ads. The existence of MX records for the disputed domain name suggests that Respondent is actively using the domain name to send email communications.

 

iii) Respondent acted with actual or constructive knowledge of Complainant's rights in the CHARTER mark. Respondent's website purports to be an informational site for Complainant's PANORAMA CHARTER intranet but contains multiple pay-per-click advertisements and blatantly copies Complainant's CHARTER marks and substantial content from Complainant's websites without authorization. Respondent's use of the disputed domain name is intended to trade on Complainant's famous CHARTER marks and is likely to confuse Internet users into believing that Respondent's website is licensed by or affiliated with Complainant when it is not. Respondent configured the disputed domain name to send and receive email communications, as demonstrated by the MX records. To the extent that Respondent intends to use the disputed domain name to pass itself off as Complainant in furtherance of an illegal phishing scheme, that conduct would amount to bad faith.

 

B. Respondent

Respondent did not submit a Response in this proceeding.

 

FINDINGS

1. The disputed domain name was registered on March 15, 2024.

 

2. Complainant has established right in the CHARTER mark through its registration with the USPTO (e.g., Reg. No. 3,899,216 – registered on January 4, 2011).

 

3. Respondent's website prominently features the words PANORAMA CHARTER at the top of the homepage, with sub-headings such as "Panorama Charter," "Panorama Spectrum," "Charter Bill Pay," and "Charter Email Sign."

 

4. Respondent's website displays the CHARTER marks and copies significant content from Complainant's various websites— including screen captures from Complainant's login screen for its Panorama Charter portal.

 

5. Respondent populates its website with numerous pay-per-click advertisements, many of which relate to services offered by Complainant and/or its competitors.

 

6. There is a disclaimer in small text at the bottom of the resolving website for the disputed domain name that the "website is not associated with the Panorama charter."

 

7. The disputed domain name has active mail exchanger ("MX") records.

 

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 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").

 

Identical and/or Confusingly Similar

Complainant asserts rights in the CHARTER mark with the USPTO. Registration of a mark with the USPTO is sufficient to establish rights in a mark under Policy ¶ 4(a)(i).  Complainant provides copies of its registration for the CHARTER mark with the USPTO (e.g., Reg. No. 3,899,216 – registered on January 4, 2011). Therefore, the Panel finds that Complainant has rights in the CHARTER mark under Policy ¶ 4(a)(i).

 

Complainant argues that the disputed domain name <panoramacharter.run> is confusingly similar to Complainant's CHARTER mark because it incorporates Complainant's mark while adding the generic term "panorama" and the ".run" gTLD. The disputed domain name is still be found to be confusingly similar to Complainant's mark, under Policy ¶ 4(a)(i), despite the addition of the generic term and the ".run" gTLD. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognizable 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."); see also 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."). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant's mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

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 Section 2.1, WIPO Jurisprudential Overview 3.0 ("Where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.").

 

Complainant argues that Respondent has no rights or legitimate interest in the disputed domain name as Respondent is not commonly known by the disputed domain name, nor has Respondent been authorized by Complainant to use Complainant's mark, and Respondent is not affiliated with Complainant. Relevant information, such as WHOIS information, can be used as evidence to show a respondent is or is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). The Panel notes that the unmasked WHOIS data lists "niche builder" as the registrant, and there is no evidence in the record to suggest Respondent was authorized to use the mark. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).

 

Complainant argues that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use, as Respondent used the disputed domain name to pass itself off as Complainant and to display multiple pay-per-click advertisements for Complainant's competitors. Where a respondent uses a disputed domain name to pass itself off as a complainant and to display pay-per-click advertisements for Complainant's competitors, the Panel may find the respondent fails to make 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 TGI Friday's of Minnesota, Inc. v. Tulip Company / Tulip Trading Company, FA 1691369 (Forum Oct. 10, 2016) ("Respondent uses the domain for a parking page displaying various links that consumers are likely to associate with Complainant, but that simply redirect to additional advertisements and links that divert traffic to third-party websites not affiliated with Complainant… The Panel here finds that Respondent is not using the domain name in connection with a bona fide offering of goods or services.").

 

Complainant provides screenshots of the disputed domain's website, showing: (i) Respondent's website prominently features the words PANORAMA CHARTER at the top of the homepage, with sub-headings such as "Panorama Charter," "Panorama Spectrum," "Charter Bill Pay," and "Charter Email Sign;" (ii) Respondent's website displays the CHARTER marks and copies significant content from Complainant's various websites, including screen captures from Complainant's login screen for its Panorama Charter portal; and (iii) Respondent populates its website with numerous pay-per-click advertisements, many of which relate to services offered by Complainant and/or its competitors.

 

The Panel finds that Respondent's fraudulent activities and passing off, along with populating its website with numerous pay-per-click advertisements, do not qualify as use of the disputed domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or as legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). Therefore, the Panel concludes that Respondent has failed to use the domain for a bona fide offering or for legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (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.

 

Registration and Use in Bad Faith

Complainant argues that Respondent registered and uses the disputed domain name in bad faith because Respondent disrupts Complainant's business and attempts to attract Internet users to its competing website for commercial gain. Where a respondent uses a disputed domain name to pass itself off as a complainant, the Panel may find evidence of bad faith disruption of a complainant's business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where "Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant's own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.").

 

As previously noted, Complainant provides screenshots of the disputed domain's website, showing: (i) Respondent's website prominently features the words PANORAMA CHARTER at the top of the homepage, with sub-headings such as "Panorama Charter," "Panorama Spectrum," "Charter Bill Pay," and "Charter Email Sign;" (ii) Respondent's website displays the CHARTER marks and copies significant content from Complainant's various websites, including screen captures from Complainant's login screen for its Panorama Charter portal; and (iii) Respondent populates its website with numerous pay-per-click advertisements, many of which relate to services offered by Complainant and/or its competitors.

 

The Panel finds that Respondent disrupts Complainant's business by redirecting Internet users to a webpage that mimics Complainant's own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant. The Panel finds that Respondent presumably receives revenue by inducing Internet users seeking Complainant to its fraudulent website displaying numerous hyperlinks, many of which are linked to Complainant's competitors. Therefore, the Panel finds that Respondent registered and used the disputed domain name in bad faith per Policy ¶ 4(b)(iv).

 

The Panel notes that there is a disclaimer in small text at the bottom of the resolving website for the disputed domain name stating that the "website is not associated with the Panorama charter." However, as the overall circumstances of this case point to Respondent's bad faith, the mere existence of a disclaimer cannot cure such bad faith. The Panel instead considers Respondent's use of the disclaimer as an admission that users may be confused. See Section 3.7, WIPO Jurisprudential Overview 3.0 ("Where the overall circumstances of a case point to the respondent's bad faith, the mere existence of a disclaimer cannot cure such bad faith. In such cases, panels may consider the respondent's use of a disclaimer as an admission by the respondent that users may be confused.").

 

Next, Complainant argues that Respondent had actual knowledge of Complainant's rights in its marks when registering the disputed domain name, emphasizing that it is inconceivable Respondent lacked such knowledge. This is supported by Respondent's use of Complainant's marks and exact logos, as well as the copying of content from Complainant's official website. While constructive knowledge is insufficient to establish bad faith under Policy ¶ 4(a)(iii), actual knowledge of a complainant's trademark rights is sufficient. This can be demonstrated by Respondent's use of the disputed domain name to impersonate Complainant. See 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 Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum Jan. 5, 2018) ("[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.").

 

The Panel infers that, due to Respondent's passing off as Complainant by using Complainant's exact CHARTER mark and logo, copying substantial content from Complainant's official website, and the notoriety of Complainant's CHARTER marks, Respondent had actual knowledge of Complainant's rights in the marks when registering the disputed domain name. Therefore, the Panel finds that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii).

 

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 <panoramacharter.run> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Ho-Hyun Nahm, Esq., Panelist

Dated: October 18, 2024