Charter Communications Holding Company, LLC v. J. VanTubergen
Claim Number: FA2011001920172
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Lian Ernette of Holland & Hart LLP, United States. Respondent is J. VanTubergen (“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spectruminternet.promo>, registered with GoDaddy.com, LLC.
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.
The Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 10, 2020; the Forum received payment on November 10, 2020.
On November 11, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <spectruminternet.promo> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 November 12, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 2, 2020 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@spectruminternet.promo. Also on November 12, 2020, 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 December 7, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honourable Neil Anthony Brown QC 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 made the following contentions.
Complainant, Charter Communications Holding Company, is a telecommunications company providing TV, internet, and voice services. Complainant has rights in the SPECTRUM INTERNET mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,098,550, registered Dec. 13, 2016). See Compl. Ex. 3. Respondent’s <spectruminternet.promo> domain name is confusingly similar to Complainant’s SPECTRUM INTERNET mark since it includes the mark in its entirety and simply adds the “.promo” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <spectruminternet.promo> domain name because Respondent is not commonly known by the disputed domain name and is not authorized or permitted to use Complainant’s mark. Additionally, Respondent fails to use the disputed domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent redirects Internet users to sites featuring pay-per-click links.
Respondent registered and uses the <spectruminternet.promo> domain name in bad faith since Respondent offers the domain name for sale. Additionally, Respondent features hyperlinks at the disputed domain name that redirect to competing webpages. Additionally, Respondent had actual or constructive knowledge of Complainant’s rights in the SPECTRUM marks when it registered the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States telecommunications company providing TV, internet, and voice services.
2. Complainant has established its trademark rights in the SPECTRUM INTERNET mark based upon registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,098,550, registered Dec. 13, 2016).
3. Respondent registered the disputed domain name on April 10, 2020.
4. Respondent has caused the domain name to redirect Internet users to sites featuring pay-per-click links.
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 first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant submits that it has rights in the SPECTRUM INTERNET mark based upon registration with the USPTO. Registration with the USPTO is generally sufficient to establish rights in a mark per Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). Complainant provides evidence of its registration with the USPTO (e.g., Reg. No. 5,098,550, registered Dec. 13, 2016). See Compl. Ex. 3. Therefore, the Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
The next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s SPECTRUM INTERNET mark. Complainant argues that Respondent’s <spectruminternet.promo> domain name is confusingly similar to Complainant’s SPECTRUM INTERNET mark since it includes the mark in its entirety and simply adds the “.promo” gTLD. Addition of a gTLD to a domain name that fully incorporates a mark is irrelevant to determining confusing similarity under Policy ¶ 4(a)(i). See Bittrex, Inc. v. Privacy protection service - whoisproxy.ru, FA 1759828 (Forum Jan. 12, 2018) (“The Panel here finds that the <bittrex.market> domain name is identical to the BITTREX mark under Policy ¶ 4(a)(i).”). The Panel therefore finds that the disputed domain name is identical to Complainant’s SPECTRUM INTERNET mark under Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that 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 Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s SPECTRUM INTERNET trademark and to use it in its entirety in its domain name;
(b) Respondent registered the disputed domain name on April 10, 2020;
(c) Respondent has caused the domain name to redirect Internet users to sites featuring pay-per-click links;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant argues that Respondent does not have rights or legitimate interests in the <spectruminternet.promo> domain name because Respondent is not commonly known by the disputed domain name and is not authorized or permitted to use Complainant’s mark. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization from a complainant to use a mark suggests that the respondent lacks rights and legitimate interests. See Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug, 3, 2017) (”Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.”). The WHOIS information of record lists the registrant as “J. VanTubergen” and Complainant contends that it did not authorize Respondent’s use of the SPECTRUM INTERNET mark. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii);
(f) Complainant argues that Respondent fails to use the <spectruminternet.promo> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use and instead merely redirects Internet users to sites featuring pay-per-click links. Use of a disputed domain name to display commercial hyperlinks is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See The Toronto-Dominion Bank v. GEORGE WASHERE, FA 1785311 (Forum June 7, 2018) (“Respondent’s confusingly similar <esecuretdbank.com> domain name references a website displaying links to competing third parties as well as links to Complainant and various unrelated third parties. Using the domain name in this manner shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Complainant provides a screenshot of the links page resolving at the disputed domain and notes that Respondent presumably receives referral fees from the site. See Compl. Ex. 6. The Panel agrees with Complainant and finds that Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii)
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.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, Complainant claims that Respondent registered and uses the <spectruminternet.promo> domain name in bad faith since Respondent offers the domain name for sale. A general offer to sell a disputed domain name may suggest bad faith pursuant to Policy ¶ 4(b)(i). See Airbnb, Inc. v. Super Privacy Service LTD c/o Dynadot, FA 1821386 (Forum Jan. 10, 2019) (“Complainant argues that Respondent registered and uses the <airbnbb.com> domain name in bad faith by offering it for sale. The Panel agrees and finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(i).”). Here, Complainant provides a screenshot of the resolving webpage at the disputed domain name featuring a notice that the disputed domain name may be for sale. See Compl. Ex. 6. As the Panel agrees with Complainant, it finds bad faith under Policy ¶ 4(b)(i).
Secondly, Complainant also argues that Respondent registered and uses the <spectruminternet.promo> domain name in bad faith because Respondent features hyperlinks at the disputed domain that redirect to competing webpages. Use of a confusingly similar domain name to feature competing commercial hyperlinks may be evidence of bad faith disruption of business under Policy ¶ 4(b)(iii) and bad faith attraction for commercial gain per Policy ¶ 4(b)(iv). See Lenovo (Beijing) Limited Corporation China v. jeonggon seo, FA1411001591638 (Forum Jan. 16, 2015) (finding that where the complainant operated in the computer industry and the respondent used the disputed domain name to offer competing computer related links, the respondent was disrupting the complainant’s business offerings in violation of Policy ¶ 4(b)(iii)); see also Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained). As previously noted, Complainant provides a screenshot of the links page resolving at the disputed domain. Complainant argues that the site diverts potential consumers away from Complainant and claims that Respondent presumably receives referral fees from the site. See Compl. Ex. 6. The Panel therefore agrees and finds bad faith registration and use under Policy ¶ 4(b)(iv).
Thirdly, Complainant submits that Respondent had actual or constructive knowledge of Complainant’s rights in the SPECTRUM marks when it registered the <spectruminternet.promo> domain name. While constructive knowledge is insufficient for a finding of bad faith, actual knowledge of a complainant’s rights in a mark suggests bad faith per Policy ¶ 4(a)(iii). 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 University of Rochester v. Park HyungJin, FA1410001587458 (Forum Dec. 9, 2014) (“. . .the Panel infers Respondent’s actual knowledge here based on Respondent’s complete use of the PERIFACTS mark in the <perifacts.com> domain name to promote links related to the field of obstetrics, where Complainant’s mark is used.”). Complainant argues that knowledge is evident from Complainant’s trademark registrations and longstanding use of its marks. As the Panel finds that actual knowledge is apparent, the Panel finds bad faith pursuant to Policy ¶ 4(a)(iii).
Fourthly, in addition and having regard to the totality of the evidence, the Panel finds that, in view of Respondent’s registration of the disputed domain name using the SPECTRUM INTERNET mark and in view of the conduct that Respondent has engaged in when using the disputed domain name, Respondent registered and used it in bad faith within the generally accepted meaning of that expression.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <spectruminternet.promo> domain name be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Panelist
Dated: December 8, 2020
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