Cable One, Inc. v. Pham Dinh Nhut
Claim Number: FA1503001609972
Complainant is Cable One, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Pham Dinh Nhut (“Respondent”), Vietnam.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <cable0ne.net>, <cableoe.net>, <calbeone.net>, <cbleone.net> and <wwwcableone.com>, registered with April Sea Information Technology Company Limited.
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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 17, 2015; the Forum received payment on March 17, 2015. The Complaint was received in both Vietnamese and English.
On March 23, 2015, April Sea Information Technology Company Limited confirmed by e-mail to the Forum that the <cable0ne.net>, <cableoe.net>, <calbeone.net>, <cbleone.net> and <wwwcableone.com> domain names are registered with April Sea Information Technology Company Limited and that Respondent is the current registrant of the names. April Sea Information Technology Company Limited has verified that Respondent is bound by the April Sea Information Technology Company Limited 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 March 31, 2015, the Forum served the Vietnamese language Complaint and all Annexes, including a Vietnamese language Written Notice of the Complaint, setting a deadline of April 20, 2015 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@cable0ne.net, postmaster@cableoe.net, postmaster@calbeone.net, postmaster@cbleone.net, postmaster@wwwcableone.com. Also on March 31, 2015, the Vietnamese written language 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 April 24, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons 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.
Panel notes that Registration Agreement is written in Vietnamese, thereby making the language of the proceedings, Vietnamese. Pursuant to Rule 11(a), Panel determines that the language requirement has been satisfied through the Vietnamese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant asserts trademark rights in CABLE ONE and alleges that the disputed domain names are confusingly similar to its trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain names.
Complainant alleges that Respondent registered and used the disputed domain names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The factual findings pertinent to the decision in this case are that:
1. Complainant uses the trademark CABLE ONE in connection with its cable television services, high speed Internet services, and telephone services;
2. The trademark CABLE ONE is registered with the United States Patent and Trademark Office ("USPTO") under Reg. No. 2,283,649, registered Oct. 5, 1999;
3. The disputed domain names <cable0ne.net>, <cableoe.net>, <calbeone.net>, <cbleone.net> and <wwwcableone.com> were registered on August 24, 2004, November 19, 2007, February 22, 2007, June 2, 2005, and January 19, 2008, respectively;
4. The domain names resolve to websites with links based on Complainant’s trademark and/or generic descriptors to goods in which Complainant has a business interest; and
5. There is no commercial agreement between the parties and Complainant has not authorized Respondent to use the trademark or to register any domain name incorporating the trademark.
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(e), 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 (seeVertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. 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.”)).
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry – an investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.
Paragraph 4(a)(i) of the Policy does not distinguish between registered and unregistered trademark rights. It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights. Since Complainant provides evidence of its United States national registration for the trademark CABLE ONE the Panel is satisfied that it has trademark rights (see State Farm Mut. Auto. Ins. Co. v. Periasami Malain, FA 705262 (Nat. Arb. Forum June 19, 2006) (“Complainant’s registrations with the United States Patent and Trademark Office of the trademark, STATE FARM, establishes its rights in the STATE FARM mark pursuant to Policy, paragraph 4(a)(i).”); see also Mothers Against Drunk Driving v. phix, FA 174052 (Nat. Arb. Forum Sept. 25, 2003) finding that the complainant’s registration of the MADD mark with the United States Patent and Trademark Office establishes the complainant’s rights in the mark for purposes of Policy paragraph 4(a)(i)).
For the purposes of assessing the confusing similarity of the trademark and the domain name, the generic top-level domain gTLDs can be ignored (see Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
The comparison then resolves to the trademark, CABLE ONE, with the following terms: cable0ne, cableoe, calbeone, cbleone and wwwcableone.
Panel finds each of the disputed domain names to be “typosquatted” and trivial variations of the trademark where the trademark remains the transparent part of the term. Each is confusingly similar to the trademark (see, for example, Oxygen Media, LLC v. Primary Source, D2000-0362 (WIPO June 19, 2000) finding the domain name <0xygen.com>, with zero in place of letter “O,” “appears calculated to trade on Complainant’s name by exploiting likely mistake by users when entering the url address”); Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) finding <googel.com> to be confusingly similar to the complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”); Hallelujah Acres, Inc. v. Manila Indus., Inc., FA 805029 (Nat. Arb. Forum Nov. 15, 2006) holding <hacrs.com> confusingly similar to the complainant’s HACRES mark; Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000) finding <wwwbankofamerica.com> confusingly similar to the trademark BANK OF AMERICA because it “takes advantage of a typing error (eliminating the period between the www and the domain name) that users commonly make when searching on the Internet”); see finally Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) finding that “spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed domain name [<americangenerallifeinsurance.com>] is confusingly similar to the complainant’s [AMERICAN GENERAL] mark.”)).
Panel finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain names, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests (see Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000).
The publicly available WHOIS information identifies Respondent as “Pham Dinh Nhut” and so there is no prima facie evidence that Respondent might be commonly known by any of the disputed domain names. There is no evidence that Respondent has any trademark rights. There is no evidence that Complainant has authorized Respondent to use the trademark and Complainant denies any such authorization.
There is no evidence that the disputed domain names have been used in connection with a bona fide offering of goods or services prior to notice of the dispute. Complainant provides evidence that the domain names resolve to websites which carries links to competing services such as “Comcast Cable Offers” and “Time Warner Cable” (see H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008), where the panel found no bona fide offering under Policy ¶ 4(c)(i) when the website hosted competing commercial links);
Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) holding that the respondent had not demonstrated a bona fide offering of goods or services or a legitimate noncommercial or fair use when “the website resolving from the disputed domain name displays links to travel products and services, which directly compete with Complainant’s business”).
Panel finds that Complainant has established prima facie cases and so the onus shifts to Respondent to establish a legitimate interest in the domain names. In the absence of a Response, those cases are not met and so Panel finds that Respondent has no rights or interests and so finds that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Complainant must prove on the balance of probabilities both that the disputed domain names were registered in bad faith and used in bad faith.
Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established.
The four specified circumstances are:
‘(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent’s website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the site or location.’
Panel finds that Respondent’s actions fall under paragraph 4(b)(iv) above. Panel has already found the disputed domain names to be confusingly similar to the trademark. Panel accepts Complainant’s assertion as true that it is likely Respondent is benefiting financially from the described use of the domain names. In terms of paragraph 4(b)(iv) of the Policy, Panel finds that it is more likely than not that Respondent is using the domain names to attract, for commercial gain, internet users to Respondent’s websites by creating a likelihood of confusion with the Complainant’s trademark (see, for example, DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“the Panel finds the respondent is appropriating the complainant’s mark in a confusingly similar domain name for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).”); see also Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
Panel finds registration and use in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED in each case.
Accordingly, it is Ordered that the <cable0ne.net>, <cableoe.net>, <calbeone.net>, <cbleone.net> and <wwwcableone.com> domain names be TRANSFERRED from Respondent to Complainant.
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Debrett G. Lyons, Panelist
Dated: May 2, 2015
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