Charter Communications Holding Company, LLC v. Pradeep technologies
Claim Number: FA2212002023193
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Julie Kent of Holland & Hart LLP, Colorado, USA. Respondent is Pradeep technologies (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <panoramacharters.one>, (‘the Domain Name’) registered with NameCheap, Inc..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to Forum electronically on December 7, 2022; Forum received payment on December 7, 2022.
On December 7, 2022, NameCheap, Inc. confirmed by e-mail to Forum that the <panoramacharters.one> 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 December 9, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 29, 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@panoramacharters.one. Also on December 9, 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 January 4, 2023 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarised as follows:
The Complainant owns the trade mark CHARTER registered in the USA for telecommunications services since 2011. It operates an employee portal at panorama.charter.com.
The Domain Name registered in 2021 is confusingly similar to the Complainant’s trade mark adding only the word ‘panorama’, a letter ‘s’ and the gTLD .com which are each insufficient to prevent said confusing similarity.
The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by the Domain Name and is not authorised by the Complainant,
The web site attached to the Domain Name mimics the Complainant’s official web site copying material from that site and providing a link to it, but features advertisements for commercial gain and a log in facility which appears to be for the purposes of phishing. This cannot be a bona fide offering of goods or services or a legitimate non commercial fair use.
It is registration and use in bad faith capitalizing upon consumer confusion for profit and disrupting the Complainant’s business. The use of a very small disclaimer at the bottom of the pages on the sites does not obviate the confusion. The use of the Complainant’s logo and material copied from the Complainant’s own site shows actual knowledge of the Complainant and its rights, business and services. Phishing is bad faith per se.
The Respondent is involved in a pattern of registering domain names containing the trade marks of third parties and has been the subject of an adverse decision under the Policy.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant owns the trade mark CHARTER registered in the USA for telecommunications services since 2011. It operates an employee portal at panorama.charter.com.
The Domain Name registered in 2021 has been used for a site mimicking the Complainant’s site, copying material from it and linking to it, featuring the Complainant’s logo, advertisements and a log in screen. The Respondent has registered other domain names containing the trade marks of third parties and has been subject to an adverse decision under the Policy.
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 Domain Name consists of the Complainant's CHARTER mark (which is registered in USA for telecommunication services since 2011), the word ‘panorama’, the letter ‘s’ and a gTLD .com.
Previous panels have found confusing similarity when a respondent merely adds a generic term to a Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000)(finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The Panel agrees that the addition of the term ‘panorama’ to the Complainant's mark does not prevent confusion between the Domain Name and the Complainant's trade mark pursuant to the Policy.
Panels have found that adding one letter to the end of the mark of the Complainant does not distinguish a domain name from that mark. See PathAdvantage Associated v VistaPrint Technologies Ltd, FA 1625731 (Forum July 23, 2015)(holding that the pathadvantages.com domain name was confusingly similar to the PATHADVANTAGE trade mark merely adding the letter ‘s’.). The Panel holds that the addition of the single letter ‘s’ to the Complainant’s mark does not prevent confusing similarity between it and the Domain Name.
The gTLD .com does not serve to distinguish the Domain Name from the CHARTER SPECTRUM mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark. There is no evidence or reason to suggest the Respondent is commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The web site attached to the Domain Name features material copied from the official web site of the Complainant, uses the Complainant’s logo and links to the Complainant’s own site so that the Respondent’s site appeared to be an official site of the Complainant. The Respondent’s site features commercial advertisements and a log in facility. The site did not make it clear that there is no connection with the Complainant. The use of a small disclaimer does not obviate the likelihood of confusion. The Panel finds this use is deceptive and passing off. As such this use cannot amount to the bona fide offering of goods and services. See iFinex Inc. v Yuri Heifetz/Genie-Solution, FA 1789385 (Forum July 9, 2018)(holding that the respondent’s mimicking the complainant’s web site in order to cause existing or potential customers of the Complainant’s to believe they are dealing with the complainant is prima facie evidence of the respondent’s lack of rights and legitimate interests in the disputed domain name).
The log in facility on the web site attached to the Domain Name appears to be collecting information which could be used for phishing purposes. See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (“a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”).
Further the Domain Name is very similar to the URL for the Complainant’s portal for its employees panorama.charter.com and appears to be a typosquatting registration which also indicates a lack of rights or legitimate interest. See Macy’s Inc. and its subsidiary Macy’s West Stores, Inc. v. chen wenjie c/o Dynadot Privacy, FA1404001552918 (Forum May 21, 2014) (“Respondent’s disputed domain names are typosquatted versions of Complainant’s registered mark. Typosquatting shows a lack of rights or legitimate interests.”).
The Respondent has not answered this Complaint or rebutted the prima facie case evidenced by the Complainant as set out herein.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the panelist the use made of the Domain Name in relation to the Respondent’s site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant, when it is not, as it uses material copied from the Complainant’s web site and the Complainant’s logo which also shows that the Respondent is aware of the Complainant and its rights, business and services. The Respondent’s site features commercial advertisements.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site or services on it likely to disrupt the business of the Complainant. . See Allianz of AM. Corp v Bond, FA 680624 (Forum June 2, 2006)(finding bad faith registration and use where the respondent was diverting Internet users searching for the complainant to its own website).
The Domain Name is similar to the URL for the Complainant’s employees portal panorama.charter.com and seeks to take advantage of the situation where Internet users may make typographical errors. Typosquatting itself is evidence of relevant bad faith registration and use and disruption of the Complainant’s business. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith). Typosquatting also indicates the Respondent had knowledge of the Complainant and its rights. See InfoSpace, Inc. v. Greiner, FA 227653 (Forum Mar. 8, 2004) (“Respondent’s domain name is a simple and popular variation of a trademark commonly used by typosquatters …Such a domain name evidences actual knowledge of the underlying mark prior to the registration of the domain name, and as Respondent failed to submit any evidence to counter this inferrence [sic], Respondent’s actions evidence bad faith registration of the disputed domain name.”).
The Respondent’s web site is collecting information via a log in facility. Phishing conduct is evidence of bad faith registration and use within the Policy 4 (a)(iii). See Klabzuba Oil & Gas, Inc v LAKHPAT SINGH BHANDARI, FA 1506001625750 (Forum July 17, 2015).
The Respondent has registered other domain names containing the well known trade marks of third parties and has been the subject of an adverse decision under the Policy. A pattern of bad faith registration evidences bad faith pursuant to Policy 4(b)(ii) and may be established by previous registration of domain names incorporating famous marks or previous negative UDRP decisions. See Philip Morris Inc. v. r9.net, D2003-0004 (WIPO Feb. 28, 2003) (finding that the respondent’s previous registration of domain names such as <pillsbury.net>, <schlitz.net>, <biltmore.net> and <honeywell.net> and subsequent registration of the disputed <marlboro.com> domain name evidenced bad faith registration and use pursuant to Policy ¶ 4(b)(ii)).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(ii), (iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <panoramacharters.one> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
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