Charter Communications Holding Company, LLC v. Chandan Kumar
Claim Number: FA1808001800569
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Madelon Lapidus of Holland & Hart LLP, Colorado. Respondent is Chandan Kumar (“Respondent”), Vermont.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <charterspectrumtvdeals.com>, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 8, 2018; the Forum received payment on August 8, 2018.
On August 9, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <charterspectrumtvdeals.com> 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 August 14, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 4, 2018 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@charterspectrumtvdeals.com. Also on August 14, 2018, 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 September 5, 2018 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant, Charter Communications Holding Company, LLC, is a telecommunications company providing services to over 26 million customers in the United States.
Complainant has used the CHARTER/SPECTRUM marks in connection with cable television and related services since as early as 1994 and has rights therein based upon its registration of the marks with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <charterspectrumtvdeals.com> domain name is confusingly similar to Complainant’s CHARTER SPECTRUM mark, as the name contains the mark in its entirety, together with the generic terms “tv” and “deals” and the generic top-level domain “gTLD” “.com.”
Respondent has no rights or legitimate interests in the <charterspectrumtvdeals.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the CHARTER SPECTRUM mark in any manner. Respondent’s use of the domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the domain name to host a replica of Complainant’s legitimate website and to offer competitive services.
Respondent registered and is using the <charterspectrumtvdeals.com> domain name in bad faith. Respondent’s passing off behavior is evidence of its intent to trade on Complainant’s CHARTER/SPECTRUM marks to confuse Internet users for commercial gain. Further, it is clear Respondent had actual knowledge of Complainant and its rights in the marks at the time Respondent registered and subsequently used the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the CHARTER SPECTRUM mark as demonstrated by its registration of such mark with the USPTO.
Complainant’s rights in the CHARTER SPECTRUM mark existed prior to Respondent’s registration of the at-issue domain name.
Respondent uses the <charterspectrumtvdeals.com> domain name to pass itself off as Complainant so that it may capture internet traffic intended for Complainant. The <charterspectrumtvdeals.com> website closely resembles Complainant’s legitimate website and purports to offer services competing with those services offered by Complainant.
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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s USPTO trademark registration for CHARTER SPECTRUM evidences its rights in such mark for the purposes of Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Additionally, the at-issue domain name contains Complainant’s CHARTER SPECTRUM trademark less its space, followed by the terms “tv” and “deals,” all followed by the top level domain name “.com.” Importantly, the differences between the at-issue <charterspectrumtvdeals.com> domain name and Complainant’s CHARTER SPECTRUM trademark are insufficient to distinguish the domain name from Complainant’s trademark for the purposes of the Policy. In fact the inclusion of the terms “tv” and “deals” (or simply “tvdeals”) only add to any confusion between the two since the terms are suggestive of Complainant’s television related business. Therefore, the Panel finds pursuant to Policy ¶ 4(a)(i) that Respondent’s <charterspectrumtvdeals.com> domain name is confusingly similar to Complainant’s CHARTER SPECTRUM trademark. See YETI Coolers, LLC v. Randall Bearden, FA 16060016880755 (Forum Aug. 10, 2016) (finding that the words “powder coating” in the <yetipowdercoating.com> domain name are “merely explicative and directly refer to some of the services rendered by the Complainant” and, therefore, create an “irrefutable confusing similarity” to complainant’s YETI mark); see also, eBay Inc. v. eBay Motors, FA1705001731822 (Forum June 26, 2017) (finding <ebay-online.com> confusingly similar to eBay’s EBAY mark because “addition of generic words—particularly words like ‘online,’ which pertain to a complainant’s trademark-related activities—fails to sufficiently distinguish domain names from registered marks”); see also, Direct Energy Marketing Limited v. Xushuaiweiren / xushuaiwei, FA 1762707 (Forum Jan. 22, 2018) (“Removal of spaces and additions of TLDs are irrelevant to a Policy ¶ 4(a)(i) analysis.”).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the <charterspectrumtvdeals.com> 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.
WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Chandan Kumar.” The record before the Panel contains no evidence that otherwise tends to show that Respondent is commonly known by the <charterspectrumtvdeals.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Furthermore, Respondent uses the at-issue domain name to pass itself off as Complainant and direct internet traffic to a website mimicking Complainant’s official website. There, Respondent appears to offer services that compete with Complainant’s services. Respondent’s use of the at-issue domain name in this manner constitutes 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). See Bittrex, Inc. v. Caroline Alves Maia, FA 1796113 (Forum Aug. 6, 2018) (finding the respondent’s attempt to pass itself of as the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii) when the respondent used the disputed domain name to present users with a website that was “virtually identical, with the same color scheme, the same layout and the same substantive content.”); see also General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
Respondent’s <charterspectrumtvdeals.com> domain name was registered and used in bad faith. As discussed below without limitation, Policy ¶ 4(b) specific bad faith circumstances as well as other bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith regarding the at-issue domain name, pursuant to paragraph 4(a)(iii) of the Policy.
As mentioned with regard to rights and legitimate interests, Respondent uses its confusingly similar <charterspectrumtvdeals.com> domain name to divert internet users seeking Complainant to Respondent’s <charterspectrumtvdeals.com> website where Respondent appears to offer competing services. Respondent’s website mimics Complainant’s official website. Such use of the domain name disrupts Complainant’s business and further exploits and trades on the goodwill associated with Complainant’s CHARTER SPECTRUM trademark. Using the domain name in this manner demonstrates Respondent’s bad faith registration and use of <charterspectrumtvdeals.com> under both Policy ¶¶ 4(b)(iii) & (iv). See PopSockets LLC v. san mao, FA 1740903 (Forum Aug. 27, 2017) (finding disruption of a complainant’s business sufficient to establish bad faith registration and use per Policy ¶ 4(b)(iii)); see also, Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii).”); see also Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the disputed domain name was registered and used in bad faith where the respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . to perpetrate a fraud upon individual shareholders who respected the goodwill surrounding the AIG mark”); see also, Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA1409001579141 (Forum Oct. 15, 2014) (“Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant.”).
Additionally, Respondent registered <charterspectrumtvdeals.com> knowing that Complainant had trademark rights in the CHARTER SPECTRUM trademark. Respondent’s prior knowledge is evident given the notoriety of Complainant’s trademark as well as from Respondent’s reproduction of Complainant official website at <charterspectrumtvdeals.com>. It follows that Respondent intentionally registered the at-issue domain name to improperly exploit its trademark value, rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <charterspectrumtvdeals.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <charterspectrumtvdeals.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: September 6, 2018
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