Charter Communications Holding Company, LLC v. Milen Radumilo
Claim Number: FA2106001952242
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Lian Ernette of Holland & Hart LLP, Colorado, USA. Respondent is Milen Radumilo (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spectrurm.net>, registered with Tucows Domains 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 22, 2021; the Forum received payment on June 22, 2021.
On June 23, 2021, Tucows Domains Inc. confirmed by e-mail to the Forum that the <spectrurm.net> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 June 24, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 14, 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@spectrurm.net. Also on June 24, 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 July 19, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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
1. Complainant is a telecommunication service company. Complainant has rights in the SPECTRUM mark through its registrations with the United States Patent and Trademark Office (“USPTO”) (e.g. SPECTRUM Reg. 6,311,602, registered Jan. 19, 2021).
2. Respondent’s <spectrurm.net>[i] domain name is identical or confusingly similar to Complainant’s mark as it incorporates the mark in its entirety and adds an extra “r”, along with the “.net” generic top-level domain (“gTLD”).
3. Respondent lacks rights and legitimate interests in the <spectrurm.net> domain name. Respondent is not commonly known by the domain name, and Complainant authorized or licensed Respondent to use its SPECTRUM mark in the domain name. Respondent does not use the domain name for any bona fide offering of goods or services, or for any legitimate noncommercial or fair use, but instead hosts competing pay-per-click links on the domain name’s resolving website.
4. Respondent typosquats with the disputed domain name.
5. Respondent registered and uses the <spectrurm.net> domain name in bad faith. Respondent offers the domain name for sale.
6. Respondent has exhibited a pattern of bad faith registration and use.
7. Respondent registered the domain name with actual and constructive knowledge of Complainant’s rights in the SPECTRUM mark.
8. Respondent inactively holds the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the SPECTRUM mark. Respondent’s domain name is confusingly similar to Complainant’s SPECTRUM mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <spectrurm.net> domain name and that Respondent registered and uses the domain name in bad faith.
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”).
Complainant has rights in the SPECTRUM mark through its registrations with the USPTO (e.g. SPECTRUM Reg. 6,311,602, registered Jan. 19, 2021). Registration with the USPTO is generally sufficient in demonstrating rights in a mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Therefore, the Respondent has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <spectrurm.net> domain name is identical or confusingly similar to Complainant’s SPECTRUM mark as it incorporates a misspelled version of the mark and adds the “.net” gTLD to the end. Under Policy ¶ 4(a)(i), incorporating a slightly misspelled version of a mark by adding one letter along with the “.net” gTLD is generally insufficient in differentiating a domain name from the mark it incorporates. See Am. Online, Inc. v. David, FA 104980 (Forum Apr. 10, 2002) (“The misspelling of a famous mark does not diminish the confusingly similar nature between the marks and the disputed domain names.”); see also Textron Innovations Inc. v. Textron Sistemi di Fissaggio srl, FA 1732602 (Forum July 6, 2017) (“Respondent is simply utilizing the Textron name/mark with the top level domain (‘tld’) .net. It is well-settled that a domain name, which utilizes a trademark along with an additional descriptive, generic terms (in this case the tld .net) does not mitigate the confusing use of the trademark.”). The <spectrurm.net> domain name incorporates Complainant’s mark in its entirety and adds and extra “r”, along with the “.net” gTLD. Therefore, the Panel holds that the <spectrurm.net> domain name is confusingly similar to Complainant’s SPECTRUM mark under Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <spectrurm.net> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant argues that Respondent is not commonly known by the <spectrurm.net> domain name, nor has Complainant authorized or licensed Respondent to use its SPECTRUM mark in the domain name. Under Policy ¶ 4(c)(ii), where a response is lacking, relevant WHOIS information may demonstrate that a respondent is not commonly known by a domain name, while a lack of information in the record demonstrating otherwise may affirm a complainant’s assertion that it never authorized or licensed the respondent to use its mark in a 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 WHOIS of record identifies Respondent as “Milen Radumilo”, and nothing in the record rebuts Complainant’s assertion that it never authorized or licensed Respondent to use its SPECTRUM mark in the <spectrurm.net> domain name. Therefore, the Panel holds that Respondent is not commonly known by the <spectrurm.net> domain name under Policy ¶ 4(c)(ii).
Complainant argues that Respondent does not use the <spectrurm.net> domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead hosts competing pay-per-click links on the domain name’s resolving website. Under Policy ¶¶ 4(c)(i) and (iii), using a domain name incorporating the mark of another to host competing pay-per-click links is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Carey Int’l, Inc. v. Kogan, FA 486191 (Forum July 29, 2005) (holding that the respondent’s use of disputed domain names to market competing limousine services was not a bona fide offering of goods or services under Policy ¶ 4(c)(i), as the respondent was appropriating the complainant’s CAREY mark in order to profit from the mark). Complainant provides a screenshot of the <spectrurm.net> domain name’s resolving website, which features no content but pay-per-click links. Therefore, the Panel holds that Respondent does not use the <spectrurm.net> domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
Complainant argues that Respondent lacks rights and legitimate interests in the <spectrurm.net> domain name by typosquatting the SPECTRUM mark. Under Policy ¶ 4(a)(ii), typosquatting, or misspelling a mark slightly in a domain name to divert internet users who mistakenly type the domain name, is generally not a practice indicative of rights and legitimate interests. See Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******, FA 156839 (Forum June 23, 2003) (holding that the respondent’s <wwwdinersclub.com> domain name, a typosquatted version of the complainant’s DINERS CLUB mark, was evidence in and of itself that the respondent lacks rights or legitimate interests in the disputed domain name vis á vis the complainant). The <spectrurm.net> domain name incorporates a slightly misspelled version of the SPECTRUM mark, that includes an extra letter “R”. Because the record supports Complainant’s contention that Respondent has engaged in typosquatting, the Panel holds that Respondent lacks rights and legitimate interests in the <spectrurm.net> domain name under Policy ¶ 4(a)(ii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent argues that Respondent registered and uses the <spectrurm.net> domain name in bad faith as it had knowledge of Complainant’s rights in the SPECTRUM mark. Under Policy ¶ 4(a)(iii), actual knowledge of a complainant’s rights in a mark may be sufficient to establish bad faith and may be demonstrated by the incorporation of a mark into a domain name. See Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between the complainant’s mark and the content advertised on the respondent’s website was obvious, the respondent “must have known about the Complainant’s mark when it registered the subject domain name”). The <spectrurm.net> domain name incorporates Complainant’s SPECTRUM mark in its entirety with a slight misspelling, and the resolving website features parked pay-per-click links to competing services. Therefore, the Panel concludes that the Respondent registered and uses the <spectrurm.net> domain name with actual knowledge of Complainant’s rights in the SPECTRUM mark under Policy ¶ 4(a)(iii).
Complainant argues that Respondent registered and uses the <spectrurm.net> domain name in bad faith as it inactively holds the domain name. Under Policy ¶ 4(a)(iii), inactively holding a domain name incorporating the mark of another with no content but parked pay-per-click links is generally considered evidence of bad faith registration and use. See Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the respondent made no use of the domain name in question and there are no other indications that the respondent could have registered and used the domain name in question for any non-infringing purpose); see also Zee TV USA, Inc. v. Siddiqi, FA 721969 (Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant). The records contains evidence that the <spectrurm.net> domain name’s resolving website contains only parked pay-per-click links. Therefore, the Panel holds that Respondent registered and uses the <spectrurm.net> domain name in bad faith under Policy ¶ 4(a)(iii).
Finally, Complainant argues that Respondent registered and uses the <spectrurm.net> domain name in bad faith by typosquatting. Under Policy ¶ 4(a)(iii), typosquatting, or registering and using a slightly misspelled mark in a domain name to divert internet users who misspell the mark in looking for a complainant’s domain name, may be evidence of bad faith registration and use. See Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … is the intentional misspelling of words with [the] intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of bad faith.”). Complainant’s SPECTRUM mark is incorporated into the <spectrurm.net> domain name with one letter added, thus amounting to typosquatting. Therefore, Respondent registered and uses the <spectrurm.net> domain name in bad faith under Policy ¶ 4(a)(iii).
The Panel finds Complainant has satisfied 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 <spectrurm.net> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: July 26, 2021
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