Charter Communications Holding Company, LLC v. Cornelius Lordiath
Claim Number: FA2209002013760
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Julie Kent of Holland & Hart LLP, Colorado, USA. Respondent is Cornelius Lordiath (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <vpn-charter.net>, registered with Porkbun 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 Forum electronically on September 27, 2022; Forum received payment on September 27, 2022.
On September 28, 2022, Porkbun LLC confirmed by e-mail to Forum that the <vpn-charter.net> domain name is registered with Porkbun LLC and that Respondent is the current registrant of the name. Porkbun LLC has verified that Respondent is bound by the Porkbun 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 29, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 19, 2022 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@vpn-charter.net. Also on September 29, 2022, 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, Forum transmitted to the parties a Notification of Respondent Default.
On October 28, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 offering cable broadcasting and internet services.
Complainant has rights in the CHARTER mark based upon registration with the United States Patent and Trademark Office (“USPTO”).
The <vpn-charter.net> domain name is confusingly similar to Complainant’s mark because Respondent has incorporated the entire mark and added the generic term “vpn”, a hyphen, and the “.net” generic top level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <vpn-charter.net> domain because Respondent is not commonly known by the at-issue domain name and is not authorized to use Complainant’s CHARTER mark. Additionally, Respondent fails to use the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because the at-issue domain resolves to an inactive webpage and Respondent previously used the domain to pass itself off as affiliated with Complainant in furtherance of a phishing scheme,
Respondent has registered and uses the <vpn-charter.net> domain name in bad faith because Respondent previously used the at-issue domain name to disrupt its business and to create bad faith attraction for commercial gain. In addition, the disputed domain resolves to an inactive webpage. Finally, Respondent had constructive and actual knowledge of Complainant’s rights in the CHARTER mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in CHARTER.
Respondent is not affiliated with Complainant and is not authorized to use the CHARTER mark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired trademark rights in CHARTER.
Respondent currently holds the at-issue domain name passively while the domain name previously addressed a website copying the look and feel of Complainant’s genuine website.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the CHARTER mark with the USPTO demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <vpn-charter.net> domain name incorporates Complainant’s entire CHARTER mark prefaced with the generic term “vpn” and a hyphen with all followed by the “.net” top-level. Under Policy ¶ 4(a)(i) the differences between Respondent’s domain name and Complainant’s trademark do nothing to distinguish one from the other. Therefore, the Panel concludes that Respondent’s <vpn-charter.net> domain name is confusingly similar to Complainant’s CHARTER trademark. 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).); see also, Health Devices Corp. v. Aspen S T C, FA 158254 (Forum July 1, 2003) (“[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶ 4(a)(i).”);
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 at-issue 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. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
The WHOIS information for the at-issue domain name ultimately identifies the domain name’s registrant as “Cornelius Lordiath” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <vpn-charter.net> domain name. The Panel therefore concludes that Respondent is not commonly known by the <vpn-charter.net> domain name for the purposes of Policy ¶ 4(c)(ii). See Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the guardair.com domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name).
Additionally, Respondent used its <vpn-charter.net> domain name to confound internet users into believing that <vpn-charter.net> and its website, which materially copied Complainant’s genuine website, was Complainant’s VPN employee portal. Therefore, it is likely that the website was constructed to lure internet users and employees of Complainant to divulge there private information and employee login credentials to Respondent. Browsing to the at-issue domain name is now flagged as unsafe but fails to address a website. Respondent’s use of the domain name in this manner suggests neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to 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 DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”); see also, Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“both Domain Names resolve to a web site that shows the words, ‘Not Found, The requested URL / was not found on this server.’ Inactive holding of a domain name does not qualify as a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i), or a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii).”).
Given the forgoing, Complainant satisfies its initial burden and demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there is evidence from which the Panel may conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First as mentioned above regarding rights and interests, Respondent used the at-issue confusingly similar domain name to pass itself off as Respondent in furtherance of deceiving <vpn-charter.net> website visitors into believing the site was sponsored by Complainant. It appears likely that Respondent desired that such visitors might be further tricked into divulging private information to Respondent or acting to benefit in some other manner. Such use of the domain name is disruptive to Complainant’s business and seeks to capitalize on the confusion Respondent caused regarding the domain name and Complainant’s trademark. Respondent’s phishing scheme thereby indicates Respondent’s bad faith registration and use of the at-issue domain name under Policy ¶¶ 4(a)(iii) and (iv). See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that the respondent’s registration and use of the disputed domain name, which displayed a website virtually identical to the complainant’s website, constituted bad faith pursuant to Policy ¶ 4(b)(iii)); see also FIL Limited v. Li jie, FA 1718900 (Forum Mar. 17, 2017) (finding the <fidelity.cn.com> domain name was registered and used in bad faith as it resolved to a website which mimicked the complainant’s login page in an attempt to gain Internet users’ personal and financial information); see also, Twitch Interactive, Inc. v. Kenny Marvel / JTI, FA1905409 (Forum Aug. 16, 2020) (“Complainant provides a screenshot of [r]espondent’s <twitch-drops.com> domain name that shows ‘Warning: Suspected Phishing Site Ahead!’ The Panel finds that this demonstrates bad faith bad faith under Policy ¶ 4(b)(iv).”).
Finally, Respondent had actual knowledge of Complainant’s rights in the CHARTER mark when it registered <vpn-charter.net> as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s trademark and from Respondent’s use of the domain name to pass itself off as Complainant. Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s rights in such domain name shows Respondent’s 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); see also, 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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <vpn-charter.net> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: October 31, 2022
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