Charter Communications Holding Company, LLC v. Ammar Saleem
Claim Number: FA1904001841051
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Madelon Lapidus of Holland & Hart LLP, Colorado, USA. Respondent is Ammar Saleem (“Respondent”), Pakistan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spectrumcableservice.com> registered with NameCheap, Inc.
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 the Forum electronically on April 29, 2019; the Forum received payment on April 29, 2019.
On April 30, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <spectrumcableservice.com> 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 1, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 21, 2019 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@spectrumcableservice.com. Also on May 1, 2019, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On May 23, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the 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 in the United States serving over 26 million people. With 94,000 employees and service in 41 states, Complainant considers itself America’s fastest growing TV, internet, and voice company. Since at least as early as 1994, Complainant has used the SPECTRUM mark in connection with cable television and related services. Complainant claims rights in the SPECTRUM TV mark based on its registration in the United States in 2015. Complainant has also registered other marks containing the term SPECTRUM, in particular SPECTRUM NEWS, SPECTRUM ENTERPRISE, SPECTRUM COMMUNITY SOLUTIONS and SPECTRUM REACH.
Complainant alleges that the disputed domain name is confusingly similar to its SPECTRUM TV mark because it incorporates the dominant SPECTRUM portion of the mark and adds only the generic term “cable” and “service” along with a “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name because Respondent is not commonly known by the disputed domain name and is not authorized or permitted to use Complainant’s mark in any fashion. Additionally, Respondent fails to use the disputed domain names in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the disputed domain name resolves to a webpage that displays Complainant’s mark and logo and mimic’s Complainant’s legitimate website. Respondent thus attempts to pass off as Complainant.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent intentionally seeks to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Specifically, Respondent is using the disputed domain name to purportedly sell Complainant’s products or to compete with Complainant. Further, Respondent had actual knowledge of Complainant’s mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark SPECTRUM TV and uses it to market telecommunication services.
Complainant’s rights in its mark date back to at least 2015.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website displays Complainant’s mark and logo, mimics Complainant’s legitimate website, and purports to offer Complainant’s services.
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 is confusingly similar to Complainant’s SPECTRUM TV mark because it incorporates the SPECTRUM portion of the mark and adds only the generic terms “cable” and “service” along with a “.com” gTLD. Omitting a portion of a mark while adding terms and a gTLD may be insufficient to defeat a finding of confusing similarity under Policy ¶ 4(a)(i). See VNY Model Management, Inc. v. Lisa Katz / Domain Protection LLC, FA 1625115 (Forum Aug. 17, 2015) (finding that Respondent’s <vnymodels.com> domain name is confusingly similar to the VNY MODEL MANAGEMENT mark under Policy ¶ 4(a)(i).); see also Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)). Thus the Panel finds that the <spectrumcableservice.com> domain name is confusingly similar to Complainant’s SPECTRUM TV mark per Policy ¶ 4(a)(i).
Respondent is not authorized or permitted to use Complainant’s CHARTER SPECTRUM mark. Where a response is lacking, relevant WHOIS information may be used to identify the respondent per Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson,FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here, the WHOIS of record identifies Respondent as “Ammar Saleem.” Accordingly, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant provides screenshots of the disputed domain name’s resolving webpage which displays Complainant’s mark and logo, mimics Complainant’s legitimate website, mark and purports to offer Complainant’s services along with additional language that could mislead users to believe that the website is connected with Complainant. A respondent attempting to pass off as a complainant may not be considered to be making a bona fide offering or legitimate noncommercial or fair use under the Policy. 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). Therefore, the Panel finds that Respondent fails to make a bona fide offering or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii). Moreover, the Panel finds that Respondent has no 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 names.
Indeed, as already noted, Respondent intentionally seeks to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of the disputed. Attempting to imply a connection with a complainant for the purpose of misleading Internet users may evince bad faith under Policy ¶ 4(b)(iv). See 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.”). Accordingly, the Panel finds bad faith registration and use under Policy ¶ 4(b)(iv).
Further, 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 <spectrumcableservice.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: May 23, 2019
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