Charter Communications Holding Company, LLC v. Ido Talmon
Claim Number: FA1904001841056
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Madelon Lapidus of Holland & Hart LLP, Colorado, USA. Respondent is Ido Talmon (“Respondent”), Israel.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwspectrum.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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 29, 2019; the Forum received payment on April 29, 2019.
On April 30, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <wwwspectrum.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 May 1, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 21, 2019 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@wwwspectrum.com. Also on May 1, 2019, 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 May 24, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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, uses their mark CHARTER SPECTRUM in connection with telecommunications. Complainant has rights in the CHARTER SPECTRUM mark based on registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 4,618,726, registered Oct. 7, 2014). See Compl. Ex. 3. Respondent’s <wwwspectrum.com> domain name is confusingly similar to Complainant’s CHARTER SPECTRUM mark, as it incorporates the mark in its entirety, merely adding the letters “www” and the generic top-level domain (“gTLD”) “.com”.
Respondent has no rights or legitimate interests in the <wwwspectrum.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the CHARTER SPECTRUM mark in any manner. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent is using the disputed domain name to falsely claim association with Complainant and promote services of Complainant’s competitors. Respondent’s use of the disputed domain name as a “fan site” does not confer rights or legitimate interests.
Respondent registered and is using the <wwwspectrum.com> domain name in bad faith. Respondent intentionally seeks to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Respondent is using the disputed domain name to host pay-per-click links that directly compete with Complainant. Respondent’s use of the disputed domain name causes initial interest confusion. Respondent’s use of a disclaimer on the disputed domain name does not mitigate Respondent’s bad faith. Finally, Respondent had actual knowledge of Complainant’s rights in the CHARTER SPECTRUM mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered the disputed domain name on July 8, 2016.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark; that Respondent has no rights or legitimate interests in or to the disputed domain name; and that Respondent has engaged in bad faith use and registration.
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”).
The Panel finds that the disputed domain name, <wwwspectrum.com>, is confusingly similar to Complainant’s valid and subsisting trademark, CHARTER SPECTRUM. Complainant has adequately plead its rights and interests in and to this trademark. Respondent arrives at the disputed domain name by appending the letters “www” and a g TLD “.com” to one word (SPECTRUM) of the two word trademark of Complainant. Without further evidence, it would appear that the disputed domain name, on first blush, is distinguishable from Complainant’ trademark; however, given the full record and evidence adduced by Complainant, it is clear that Respondent is attempting to create confusion in the use of the disputed domain name. If there is clear evidence that a respondent attempted to create confusion, the Panel if likely to find such confusion.
As such, the Panel finds that the dispute domain name is confusingly similar to Complainant’s trademark.
The Panel also finds that Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent has no right, permission or license to register the disputed domain name. Respondent is also not commonly known by the disputed domain name. Furthermore, Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent appears to be using the disputed domain name to falsely claim association with Complainant and promote services of Complainant’s competitors.
Complainant also asserts that Respondent’s use of the disputed domain name as a “fan site” does not confer rights or legitimate interests. If a disputed domain name contains content that directly refers to a complainant and its marks but does not distinguish itself from the complainant, the disputed domain name may not confer rights or legitimate interests under Policy ¶¶ 4(c)(i) or (iii). See Smith v. Network Operations Ctr., FA 371622 (Forum Jan. 13, 2005) (finding that the respondent’s use of the <ambersmith.com> domain name “that contain[ed] material directly related to Complainant, including her name and photograph prominently displayed at the top of the page” did not fall within the parameters of Policy ¶¶ 4(c)(i) or (iii) because it presented a false association with the complainant.). Here, Complainant provides a screenshot of the website associated with the disputed domain name to support this contention. See Compl. Ex. 6.
As such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name.
The Panel also finds that Respondent has engaged in bad faith use and registration of the disputed domain name. The disputed domain name is used to host pay-per-click links that directly compete with Complainant’s business. Generally, use of a disputed domain name to host pay-per-click links that directly compete with a complainant’s business demonstrates bad faith under Policy ¶ 4(b)(iii). See 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)(iii)”). Here, Complainant provides a screenshot of the website associated with the disputed domain name to support this contention. See Compl. Ex. 6. The Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name.
Additionally, Respondent appears to trade itself off as Complainant’s and confuse Internet users into believing Respondent’s website is licensed by or affiliated with Complainant. Use of a disputed domain name to pass one’s self off as a complainant and give the impression of affiliation or association with Complainant indicates bad faith under Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”). Complainant provides a screenshot of the website associated with the disputed domain which displays Complainant’s mark and information regarding Complainant’s business. See Compl. Ex. 6.
As such the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Next, Respondent appears to use of a disclaimer on the website. This does not exculpate Respondent from a finding of bad faith. A respondent’s use of a disclaimer may not mitigate a finding of bad faith under Policy ¶ 4(a)(iii). See Continental Airlines, Inc. v. Vartanian, FA 1106528 (Forum Dec. 26, 2007) (“Respondent’s use of a disclaimer does note mitigate a finding of bad faith under Policy ¶ 4(a)(iii)”). Complainant argues Respondent’s designation of the disputed domain name as “Unofficial Guides & Help” does not mitigate a finding of bad faith. Therefore, the Panel still finds bad faith under Policy ¶ 4(a)(iii).
The Panel also finds that, given the totality of the circumstances, Respondent had actual notice of Complainant’s prior rights in and to the trademark CHARTER SPECTRUM.
As such, the Panel finds that Respondent has engaged in bad faith use and registration.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwwspectrum.com> domain name be TRANSFERRED from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: May 25, 2019
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page