Charter Communications Holding Company, LLC v. Danish Michael
Claim Number: FA1809001805686
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Madelon Lapidus of Holland & Hart LLP, Colorado, USA. Respondent is Danish Michael (“Respondent”), Pakistan
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spectrumtvbundles.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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 12, 2018; the Forum received payment on September 12, 2018.
On September 13, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <spectrumtvbundles.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 September 13, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 3, 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@spectrumtvbundles.com. Also on September 13, 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 October 5, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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, Charter Communications Holding Company, LLC, is a telecommunications company providing services to over twenty-six (26) million customers in the United States. Complainant uses the SPECTRUM TV mark in connection with cable television related services and has rights in the mark based upon registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,420,855 registered Mar. 13, 2018). Respondent’s <spectrumtvbundles.com> domain name is confusingly similar to Complainant’s mark because Respondent incorporates the entire mark in the disputed domain name plus the generic term “bundles” and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <spectrumtvbundles.com> domain name because Respondent is not commonly known by the disputed domain name and is not authorized to use the SPECTRUM TV mark. Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Instead, Respondent attempts to pass itself off as Complainant by displaying Complainant’s mark on the webpages associated with the disputed domain name.
Respondent registered and uses the <spectrumtvbundles.com> domain name in bad faith. Respondent attracts, for commercial gain, users to the disputed domain name’s website where it attempts to pass itself off as Complainant and offers competing goods and services. Furthermore, Respondent had actual knowledge of Complainant’s rights in the mark prior to registration of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <spectrumtvbundles.com> domain name.
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.”).
Complainant asserts rights in the SPECTRUM TV mark based upon its registration of the mark with the USPTO. Registration of a mark with the USPTO is sufficient to establish Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Target Brands, Inc. v. jennifer beyer, FA 1738027 (Forum July 31, 2017) ("Complainant has rights in its TARGET service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office (“USPTO”).”). Complainant provides a copy of its registration of the SPECTRUM TV mark with the USPTO (e.g., 5,420,855 registered Mar. 13, 2018). The Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant contends that Respondent’s <spectrumtvbundles.com> domain name is confusingly similar to Complainant’s mark because Respondent incorporates the entire mark in the disputed domain name plus a generic term and a gTLD. The addition of a generic term and a gTLD to a mark may not be sufficient to distinguish a domain name from a mark under Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)). Respondent incorporates the entire SPECTRUM TV mark in the disputed domain name plus the generic term “bundles” and the “.com” gTLD. The Panel finds that Respondent’s disputed domain name is confusingly similar to Complainant’s mark.
Complainant has proved this element.
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”).
Complainant argues that Respondent lacks rights and legitimate interests in the <spectrumtvbundles.com> domain name because Respondent is not commonly known by the disputed domain name and is not authorized to use Complainant’s mark in any way. Where a response is lacking, relevant WHOIS information may be used to identify the registrant of the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“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).”). Additionally, lack of authorization from Complainant to use the mark is evidence that a Respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information of record identifies the registrant of the domain name as “Danish Michael,” and nothing in the record indicates that Respondent is authorized to use Complainant’s mark in any fashion. The Panel finds that Respondent is not commonly known by the disputed domain name and Respondent lacks rights and legitimate interests in respect of the disputed domain name.
Complainant alleges that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Specifically, Respondent attempts to pass itself off as Complainant by mimicking Complainant’s webpage. Use of a domain name to pass off as Complainant is not a bona fide offering of goods and services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business). Complainant provides screenshots of the webpages associated with the disputed domain name which show Respondent displaying Complainant’s mark as well as photos related to Complainant’s television services. The Panel finds that Respondent uses the disputed domain name to pass itself off as Complainant and has not demonstrated rights or legitimate interests under a Policy ¶ 4(c)(i) or (iii) analysis.
Complainant has proved this element.
Complainant argues that Respondent registered and uses the <spectrumtvbundles.com> domain name in bad faith. Specifically, Respondent attempts to commercially gain by passing off as Complainant and offering competing goods and services. Use of a domain name to pass off as complainant and offer competing goods and services is evidence of bad faith under Policy ¶ 4(b)(iv). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding bad faith per Policy ¶¶ 4(b)(iii) and (iv) where the respondent used the disputed domain name to resolve to a website upon which the respondent passes off as the complainant and offers online cryptocurrency services in direct competition with the complainant’s business). Complainant provides screenshots of the webpages associated with the disputed domain name which show Respondent passing off as Complainant and offering TV, internet, and phone bundles in direct competition with those services offered by Complainant. The Panel finds that Respondent uses the disputed domain name to pass itself off as Complainant to offer competing goods and services, evidence of bad faith per Policy ¶ 4(b)(iv).
Complainant lastly claims that Respondent had actual or constructive knowledge of Complainant’s SPECTRUM TV mark. Actual knowledge is evidence of bad faith bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). Complainant contends that Respondent must have had actual knowledge of the SPECTRUM TV mark because Respondent attempts to recreate Complainant’s webpage at the disputed domain name resolving site. The Panel agrees and finds that Respondent had actual knowledge of Complainant’s mark and registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant has proved this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <spectrumtvbundles.com> domain name be TRANSFERRED from Respondent to Complainant.
__________________________________________________________________
Hon. Karl V. Fink (Ret.) Panelist
Dated: October 5, 2018
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