Charter Communications Holding Company, LLC v. KD TWS
Claim Number: FA2102001931566
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Lian Ernette of Holland & Hart LLP, Missouri, USA. Respondent is KD TWS (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <panoramacharter.online>, (‘the Domain Name’) registered with NameCheap, Inc.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 9, 2021; the Forum received payment on February 10, 2021.
On February 10, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <panoramacharter.online> 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 February 11, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 3, 2021 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.online. Also on February 11, 2021, 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 March 5, 2021 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarized as follows:
The Complainant owns the trade mark CHARTER registered in the USA for telecommunications services with first use recorded in the 1990s. Complainant owns the domain name charter.com registered in 1994. Specifically, Complainant uses the unregistered PANORAMA CHARTER Mark in hosting its own intranet, which is accessible only to Complainant’s employees through the <panorama.charter.com> sub-domain name. Users accessing panorama.charter.com are asked for their employee login before accessing Complainant’s intranet using a log in graphic.
The Domain Name registered in 2020 is confusingly similar to the Complainant’s trade mark adding only ‘panorama’ and the gTLD “.online” which are insufficient to prevent said confusing similarity. Given Complainant’s use of PANORAMA CHARTER in connection with its intranet, this addition is insufficient to distinguish the Domain Name from Complainant’s CHARTER Mark.
The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by the Domain Name and is not authorized by the Complainant,
The web site attached to the Domain Name suggests an association with Complainant by purporting to explain how the Complainant’s portal works, but distributes malware, and includes pay-per-click advertisements. There is only a tiny disclaimer at the bottom which says ‘This site is not associate with the Panorama charter’.
Respondent’s choice to populate the website with pay-per-click advertisements designed to look like bill pay and employee login portal modules using graphics from the Complainant’s portal and the Complainant’s logos increases the likelihood of consumer deception. Advertisers presumably pay Respondent each time consumers visiting the Domain Name and click on one of the advertisements some of which look like log in graphics from the Complainant’s portal. Upon clicking on these advertisements, consumers are immediately diverted from the Domain Name to the advertiser’s website. Peppered throughout the website are large buttons for “Open” and “Watch Now” next to the types of services Complainant provides (i.e., internet, tv). The Domain Name contains multiple pay-per-click ads containing the CHARTER Mark which lead to offers for competing services. Panels have consistently held that when “a domain name resolves to a website which purportedly offers information about Complainant’s services, as well as advertised links [that] redirect Internet users, such use is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)” given that Respondent profits from its deception of consumers in clicking on the advertisement links. Use of an identical or confusingly similar domain name to promote competitive goods or services is not a legitimate use under the Policy.
Further upon clicking the “Watch Now” button, consumers are diverted away from the Domain Name to a third-party website which prompts the user to download a browser plug-in called TV Search. TV Search is a deceptive application that appears to be legitimate, but in fact is a browser hijacker. Browser hijackers are commonly considered forms of malware, as they modify internet settings without consent.
Respondent fails to use the Domain Name for any bona fide offering of goods or services, or for any legitimate noncommercial or fair use.
The initial interest confusion caused by the similarity between the mark and the domain name is not dispelled or remedied by the small disclaimer at the bottom of the site.
The Respondent’s uses of the Domain Name are registration and use in bad faith capitalizing consumer confusion for profit and distributing malware both disrupting the Complainant’s business. Respondent’s website purports to be an “informational” site for Complainant’s PANORAMA CHARTER service, but contains pay-per-click advertisements related to Complainant and its services and falsely attributes copyright ownership of the website’s content to Complainant. Such use of the Domain Name to directly compete with Complainant and/or suggest affiliation with Complainant where none exists for commercial gain is evidence of Respondent’s bad faith registration and use. Reference to the Complainant shows actual knowledge of the Complainant and its business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant owns the trade mark CHARTER registered in the USA for telecommunications services with first use recorded in the 1990s. Complainant owns the domain name charter.com registered in 1994. Specifically, Complainant uses the unregistered PANORAMA CHARTER Mark in hosting its own intranet, which is accessible only to Complainant’s employees through the <panorama.charter.com> sub-domain name. Users accessing panorama.charter.com are asked for their employee login before accessing Complainant’s intranet using a log in graphic.
The Domain Name registered in 2020 uses graphics that look like log in graphics from the Complainant’s portal and the Complainant’s mark and logo for pay per click links that lead to competing services or sites which offer malware.
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 Domain Name in this Complaint combines the Complainant’s CHARTER mark (registered in the USA for telecommunications services with first use recorded as the 1990s), the dictionary word ‘panorama’, and the gTLD “.online”.
The addition of a dictionary word and a gTLD does not negate confusing similarity between a domain name and a trade mark contained within it. See Wiluna Holdings LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of generic terms and a gTLD are insufficient to distinguish a disputed domain name from a mark under Policy 4(a)(i).).
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
There is no need to consider unregistered rights in the mark PANORAMA CHARTER in relation to which only limited evidence has been filed.
Rights or Legitimate Interests
The Complainant has not authorized the use of its CHARTER 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, FA1408001574905 (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 Respondent has used the site attached to the Domain Name primarily for pay per click links which is not a bona fide offering of goods and services or a legitimate noncommercial or fair use. See Ashley Furniture Industries Inc. v. domain admin /private registrations aitken Gesellschaft, FA1506001626253 (Forum July 29, 2015). Such pay per click links also include sites offering malware. See Coachella Music Festival, LLC v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1785199 (Forum June 5, 2018) (“Respondent uses the <coechella.com> domain name to direct internet users to a website which is used to attempt to install malware on visiting devices. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use under Policy ¶ 4(c)(iii).”).
Use of a small disclaimer at the bottom of the site attached to the Domain Name does not affect these findings. See Google Inc. v. Domain Admin / Whois Privacy Corp, FA 1726692 (Forum May 16, 2017) (finding that the mere existence of a disclaimer on a webpage is not sufficient to confer rights and legitimate interests in a disputed domain name); see also DaimlerChrysler Corp. v. Bargman, D2000-0222 (WIPO May 29, 2000) (finding that addition of a disclaimer, when the domain name consists of the complainant’s well-known trademark, does not counter the expectation of Internet users that the domain name is sponsored by the complainant). Nor does the fact that the site offers some information about the Complainant’s portal.
As such the Panelist finds that the Respondent does not have rights or legitimate interests in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and/or Use in Bad Faith
The Domain Name has been used for competing commercial pay per click links which is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant. The site attached to the Domain Name mimics the portal of the Complainant using its log in graphics and logos. This mimicking of the Complainant’s portal and reference to it, use of the Complainant’s logos and choice of a domain name that reflects the Complainant’s panorama.charter.com URL for its portal shows actual knowledge of the Complainant and its rights, business 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 trade mark as to the source, sponsorship, affiliation or endorsement of the web site or services offered on it likely to disrupt the business of the Complainant. See Health Republic Insurance Company v. Above.comLegal, FA 1506001622088, (Forum July 10, 2015) re diversion to pay per click links. See also 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.”)
Further using a disputed domain name to disseminate malware indicates bad faith and further disruption of the Complainant’s business. See Amazon Technologies, Inc. v. Timothy Mays aka Linda Haley aka Edith Barberdi, FA1504001617061 (Forum June 9, 2015) (“In addition, Respondent’s undenied use of the websites resolving from the contested domain names to distribute malware and other malicious downloads further illustrates its bad faith in the registration and use of those domain names.”).
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 ¶¶ 4(b)(iii) and (iv).
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.online> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: March 8, 2021
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