Charter Communications Holding Company, LLC v. Kamran Sattar
Claim Number: FA2211002021589
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Julie Kent of Holland & Hart LLP, Colorado, USA. Respondent is Kamran Sattar
(“Respondent”), Pakistan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spectrumbillnow.com>, registered with NameCheap, Inc..
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on November 23, 2022; Forum received payment on November 23, 2022.
On November 24, 2022, NameCheap, Inc. confirmed by e-mail to Forum that the <spectrumbillnow.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 November 29, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 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@spectrumbillnow.com. Also on November 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 December 21, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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 states that it is a telecommunications company providing services to more than 32 million customers in the United States. With 96,000 employees and service in 41 states, Complainant considers itself America’s fastest growing TV, internet, and voice company. Complainant asserts rights in the SPECTRUM trademark through its registration in the United States in 2021.
Complainant alleges that the disputed domain name is confusingly similar to its SPECTRUM mark as it incorporates the mark in its entirety, merely adding the generic term “bill now” and the generic top-level domain (“gTLD”) “.com”. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use its mark. Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, the resolving website purports to provide Complainant’s services and it falsely impersonates Complainant: its “About Us” webpage displays a photo of one of Complainant’s legitimate storefronts, which prominently features Complainant’s SPECTRUM mark name and logo; further, it includes hyperlinks that redirect to Complainant’s legitimate website. Many of the links on the resolving website are entirely nonfunctional, or redirect back to the same webpage on which they appear; similarly, the links displayed for Facebook, Twitter, Instagram, and LinkedIn do not actually redirect to any social media webpage at all, thus providing no legitimate use to visiting consumers. Rather, Respondent is likely using (or intending to use) the disputed domain name and resolving website in furtherance of a phishing scheme: the disputed domain name does have active mail exchanger (“MX”) records. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. The resolving website impersonates Complainant, purporting to provide Complainant’s services. Respondent engages, or intends to engage, in phishing. Respondent had actual knowledge of Complainant’s rights in the SPECTRUM mark prior to registration of the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark SPECTRUM dating back to at least 2021 and uses it to offer telecommunications services.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website purports to offer Complainant’s services; it displays Complainant’s mark and logo and includes hyperlinks that redirect to Complainant’s legitimate website. Many of the links on the resolving website are not functional; there are MX records associated with the disputed 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 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 disputed domain name incorporates Complainant’s SPECTRUM the mark in its entirety, merely adding the generic term “bill now” and the generic top-level domain (“gTLD”) “.com”. Similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.). The Panel therefore finds that the <spectrumbillnow.com> domain name is confusingly similar to Complainant’s SPECTRUM mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its SPECTRUM mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii)), WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here, the WHOIS information of record identifies the registrant as “Kamran Sattar”. The Panel therefore finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website impersonates Complainant and purports to offer Complainant’s services. Passing off for commercial gain can represent a failure to use a domain name in connection with a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate, noncommercial or otherwise fair use per Policy ¶ 4(c)(iii). See Netflix, Inc. v. Irpan Panjul / 3corp.inc, FA 1741976 (Forum Aug. 22, 2017) (“The usage of Complainant’s NETFLIX mark which has a significant reputation in relation to audio visual services for unauthorised audio visual material is not fair as the site does not make it clear that there is no commercial connection with Complainant and this amounts to passing off . . . As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name.”); see also Am. Int’l Grp., Inc. v. Busby, FA156251 (Forum May 30, 2003) (finding that respondent’s attempts to pass itself off as complainant evinced respondent’s lack of rights or legitimate interests in the domain name <aig-ma.com>). The Panel therefore finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving website impersonates Complainant and purports to provide Complainant’s services. Use of the disputed domain name in this manner shows bad faith registration and use under Policy ¶ 4(b)(iv). See Charter Commc’ns Holding Co., LLC v. Ido Talmon, FA1841056 (Forum May 25, 2019) (finding respondent’s registration of <spectrum.com> was in bad faith where respondent displayed the complainant’s mark, information on the complainant, and intended to confuse consumers into believing respondent was affiliated with complainant); see also Charter Commc’ns Holding Co., LLC v. Webdesk Two, FA1800636 (Forum Sept. 5, 2018) (finding bad faith in registration of <spectrumpack.com> because “[u]se of a domain name to create a false impression of affiliation with a complainant in order to compete with and disrupt the complainant’s business is behavior indicative of bad faith registration and use per Policy ¶¶ 4(b)(iii) and (iv).”) Therefore the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶¶ 4(b) (iii) and/or (iv).
Further, Respondent has configured the disputed domain name to send and receive email communications. Prior panels have found that similar evidence leads to an inference that the registrant has registered and is using the domain name in bad faith, such as to send emails impersonating the complainant and conduct illegal phishing schemes. See Vanguard Trademark Holdings USA LLC v. Rodrigues / Fundacion Comercio Electronico, FA1940361 (Forum May 3, 2021) (“Also of concern is that it has not been denied that Respondent has taken affirmative steps to set up MX records for the disputed domain name, as shown in the screen captures of the MX lookup search exhibited in an annex to the Complaint. This panel finds, agreeing with Complainant that email capability is not needed for parked domains and leads to an inference of bad faith intent.”). Here, the resolving website is not a parked page, but it contains many links that are not functional. The Panel finds, on the balance of the evidence, that Respondent likely intends to use the disputed domain name in furtherance of a phishing scheme. The Panel therefore finds that Respondent registered and uses the disputed domain name in bad faith per Policy 4(a)(iii).
Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website explicitly refers to Complainant’s services and it displays Complainant’s mark and logo. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); 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). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <spectrumbillnow.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: December 21, 2022
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