Charter Communications Holding Company, LLC v. Registration Private
Claim Number: FA2107001957602
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Lian Ernette of Holland & Hart LLP, Colorado, USA. Respondent is Registration Private (“Respondent”), Austria.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <spectrumbusinness.net> and <spectrumbisiness.net>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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 July 30, 2021; the Forum received payment on July 30, 2021.
On July 31, 2021, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <spectrumbusinness.net> and <spectrumbisiness.net> domain names are registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the names. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 August 3, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 23, 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@spectrumbusinness.net, postmaster@spectrumbisiness.net. Also on August 3, 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 August 30, 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 names be transferred from Respondent to Complainant.
A. Complainant
1. Complainant is a telecommunications company providing services to over 26 million customers in the United States. Complainant has rights in the SPECTRUM BUSINESS mark through Complainant’s registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,028,677, registered August 23, 2016).
2. Respondent’s <spectrumbusinness.net> and <spectrumbisiness.net>[i] domain names are confusingly similar to Complainant’s SPECTRUM BUSINESS mark as both wholly encompasses Complainant’s mark, with a misspelling of the term “business” with the added generic top-level domain “.net.”
3. Respondent lacks rights or legitimate interests in the <spectrumbusinness.net> and <spectrumbisiness.net> domain names. Respondent is not commonly known by the domain names nor has Respondent been authorized by Complainant to use the SPECTRUM BUSINESS mark.
4. Respondent has not used the domain names in connection with a bona fide offering of goods or services as Respondent uses them in connection with pay-per-click advertisements.
5. Respondent also offers the domain names for sale and engaged in typosquatting.
6. Respondent registered and uses the <spectrumbusinness.net> and <spectrumbisiness.net> domain names in bad faith. Respondent has a history of bad faith registrations. Respondent also offers the domain names for sale. Respondent uses the domain names in connection with pay-per-click advertisements. Finally, Respondent engaged in typosquatting.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the SPECTRUM BUSINESS mark. Respondent’s domain names are confusingly similar to Complainant’s SPECTRUM BUSINESS mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <spectrumbusinness.net> and <spectrumbisiness.net> domain names and that Respondent registered and uses the domain names 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 BUSINESS mark through Complainant’s registration of the mark with the USPTO (e.g., Reg. No. 5,028,677, registered August 23, 2016). Registration of a mark with the USPTO is sufficient to demonstrate rights in a mark per Policy ¶ 4(a)(i). See Recreational Equipment, Inc. v. Liu Chan Yuan, FA 2107001954773 (Forum Aug. 9, 2021) (“Registration of a mark with the USPTO is sufficient to demonstrate rights in the mark per Policy ¶ 4(a)(i)”). Therefore, Complainant has demonstrated rights in the SPECTRUM BUSINESS mark per Policy ¶ 4(a)(i).
Complainant argues Respondent’s <spectrumbusinness.net> and <spectrumbisiness.net> domain names are confusingly similar to Complainant’s SPECTRUM BUSINESS mark as they contain the entire mark with a misspelling of the term “business” and the added generic top-level domain “.net.” Adding a gTLD to a misspelled mark fails to sufficiently distinguish a domain name from a mark per Policy ¶ 4(a)(i). See Klein Tools, Inc. v. chenxinqi, FA 1617328 (Forum July 6, 2018) (finding that the <klentools.com> domain name is confusingly similar to the KLEIN TOOLS mark as it contains the entire BANK OF AMERICA mark and merely omits the letter “l” and adds the “.com” generic top-level domain (“gTLD”)); see also Myspace, Inc. v. Kang, FA 672160 (Forum June 19, 2006) (finding that the <myspce.com> domain name was confusingly similar to the complainant’s MYSPACE mark and the slight difference in spelling did not reduce the confusing similarity). Therefore, the Panel holds that the <spectrumbusinness.net> and <spectrumbisiness.net> domain names are confusingly similar to Complainant’s mark per 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 <spectrumbusinness.net> and <spectrumbisiness.net> domain names. 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.) The Panel holds that Complainant has made a prima facie case.
Complainant contends Respondent lacks rights or legitimate interests in the <spectrumbusinness.net> and <spectrumbisiness.net> domain names as Respondent is not commonly known by the domain names nor has Complainant authorized or licensed to Respondent any rights in the SPECTRUM BUSINESS mark. When a response is lacking, relevant WHOIS information may be used to determine whether a respondent is commonly known by a domain name under Policy ¶ 4(c)(ii). See Tenza Trading Ltd. v. WhoisProtectService.net / PROTECTSERVICE, LTD., FA1506001624077 (Forum July 31, 2015) (“The WHOIS information lists ‘WhoisProtectService.net’ as the registrant of record for the disputed domain names. Accordingly, in the absence of a Response, there is no evidence to indicate that Respondent might be known by any of the domain names.”). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by a domain name. See Radio Flyer Inc. v. er nong wu, FA 2011001919893 (Forum Dec. 16, 2020) (“Here, the WHOIS information lists “er nong wu” as the registrant and no information suggests Complainant has authorized Respondent to use the RADIO FLYER mark in any way. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”). The WHOIS information for the <spectrumbusinness.net> and <spectrumbisiness.net> domain names lists the registrant as “Registration Private,” and there is no other evidence in the record to suggest that Respondent was authorized to use the SPECTRUM BUSINESS mark. See Registrar Verification Email. Therefore, the Panel holds that Respondent is not commonly known by the <spectrumbusinness.net> and <spectrumbisiness.net> domain names per Policy ¶ 4(c)(ii).
Complainant argues that Respondent fails to use the <spectrumbusinness.net> and <spectrumbisiness.net> domain names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent uses them in connection with pay-per-click advertisements. Using a domain name incorporating the mark of another in connection with pay-per-click advertisements is not be 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).”). Here, Complainant provides screenshots showing the domain names resolve to webpages displaying pay-per-click ads that redirect to: (i) Complainant’s legitimate website; (ii) competitors of Complainant; and/or (iii) services offered by Complainant. Therefore, 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).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends Respondent registered and uses the <spectrumbusinness.net> and <spectrumbisiness.net> domain names in bad faith as Respondent has a history of bad faith registrations. A respondent’s history of cybersquatting can demonstrate bad faith per Policy ¶¶ 4(b)(i) and 4(b)(ii). See Bullock v. Network Operations Ctr., FA 1269834 (Forum Aug. 10, 2009) (“Complainant contends that Respondent has a longstanding history of cybersquatting . . . . The Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(ii).”). The record contains evidence of 6,963 domains associated with the email address gugeky@gmail.com, the same email address used to register the current domain names. Therefore, the Panel holds that Respondent registered and uses the <spectrumbusinness.net> and <spectrumbisiness.net> domain name in bad faith per Policy ¶¶ 4(b)(i) and 4(b)(ii).
Complainant also contends Respondent registered and uses the <spectrumbusinness.net> and <spectrumbisiness.net> domain names in bad faith as Respondent uses them in connection with pay-per-click advertisements. Using a domain name incorporating the mark of another in connection with pay-per-click advertisements can demonstrate bad faith per Policy ¶¶ 4(b)(iii) and 4(b)(iv). See block.one v. Negalize Interactive Things, FA 1798280 (Forum Aug. 21, 2018) (“Offering links to competing products or services can demonstrate bad faith under Policy ¶ 4(b)(iii) where a respondent registers a domain name that is confusingly similar to the mark of another.”); see also American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum Jan. 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iv)”). The record includes a screenshot showing that the domain names resolve to webpages displaying pay-per-click ads that redirect to: (i) Complainant’s legitimate website; (ii) competitors of Complainant; and/or (iii) services offered by Complainant. Therefore, the Panel holds that Respondent registered and uses the <spectrumbusinness.net> and <spectrumbisiness.net> domain name in bad faith per Policy ¶¶ 4(b)(iii) and 4(b)(iv).
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 <spectrumbusinness.net> and <spectrumbisiness.net> domain names be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: September 8, 2021
[i] The <spectrumbusinness.net> and <spectrumbisiness.net> domain names were registered on October 10, 2016.
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