Charter Communications Holding Company, LLC v. Lock Garage door / locksandgaragedoors.com
Claim Number: FA2303002036735
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Corsearch, Inc., Texas, USA. Respondent is Lock Garage door / locksandgaragedoors.com (“Respondent”), Maryland, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spectruminternetplans.com>, registered with IONOS SE.
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.
Ho-Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to Forum electronically on March 21, 2023; Forum received payment on March 21, 2023.
On March 22, 2023, IONOS SE confirmed by e-mail to Forum that the <spectruminternetplans.com> domain name is registered with IONOS SE and that Respondent is the current registrant of the name. IONOS SE has verified that Respondent is bound by the IONOS SE 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 27, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 17, 2023 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@spectruminternetplans.com. Also on March 27, 2023, 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 April 24, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Ho-Hyun Nahm, Esq. 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
i) Complainant, Charter Communications Holding Company, LLC is in the telecommunications business. Complainant has rights in the SPECTRUM INTERNET mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,098,550, registered on December 13, 2016). The disputed domain name is identical or confusingly similar to Complainant’s SPECTRUM INTERNET mark as it only adds the term “plans” along with the “.com” generic top-level domain (“gTLD”).
ii) Respondent lacks rights and legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its SPECTRUM INTERNET mark in the disputed domain name. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use, but instead passes off as Complainant while diverting users. Respondent created MX records likely using emails associated with the disputed domain name to pass off as Complainant in the furtherance of a phishing scheme.
iii) Respondent registered and uses the disputed domain name in bad faith. Respondent disrupts Complainant’s business while attracting users for commercial gain and creating a likelihood of confusion. Additionally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the SPECTRUM INTERNET mark. Respondent engages in phishing through an email address associated with the disputed domain name.
B. Respondent
Respondent did not submit a response in this proceeding.
1. The disputed domain name was registered on September 28, 2022.
2. Complainant has established rights in the SPECTRUM INTERNET mark through its registration with the USPTO (e.g., Reg. No. 5,098,550, registered on December 13, 2016).
3. The disputed domain name’s resolving webpage offers competing services with Complainant.
4. The disputed domain name’s resolving webpage displays Complainant’s marks (SPECTRUM, SPECTRUM INTERNET and SPECTRUM TV) and claims to be an authorized reseller of Complainant.
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”).
Complainant asserts rights in the SPECTRUM INTERNET mark through its registration with the USPTO (e.g., Reg. No. 5,098,550, registered on December 13, 2016). Registration of a mark with the USPTO is generally sufficient in demonstrating rights in a mark under Policy ¶ 4(a)(i). Since Complainant has provided evidence of its trademark registration for SPECTRUM INTERNET mark with the USPTO, the Panel finds Complainant has established rights in the mark under Policy ¶ 4(a)(i).
Complainant contends that the disputed domain name <spectruminternetplans.com> is identical or confusingly similar to Complainant’s SPECTRUM INTERNET mark. Under Policy ¶ 4(a)(i), adding a generic or descriptive term along with a “.com” gTLD is insufficient in differentiating from the mark. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists 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); see also F.R. Burger & Associates, Inc. v. shanshan lin, FA 1623319 (Forum July 9, 2015) (holding, “Respondent’s <frburger.com> domain name is identical to Complainant’s FRBURGER mark because it differs only by the domain name’s addition of the top-level domain name “.com.”). The disputed domain name incorporates Complainant’s mark in its entirety while adding the generic term “plans” along with the “.com” gTLD. Therefore, the Panel finds the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Complainant argues Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its SPECTRUM INTERNET mark in the disputed domain name. Under Policy ¶ 4(c)(ii), where a response is lacking, relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name. See Amazon Technologies, Inc. v. Timothy Mays aka Linda Haley aka Edith Barberdi, FA1504001617061 (Forum June 9, 2015) (concluding that the respondent was not commonly known by the <amazondevice.org>, <amazondevices.org> and <buyamazondevices.com> domain names under Policy ¶ 4(c)(ii), as the pertinent WHOIS information identified “Timothy Mays,” “Linda Haley,” and “Edith Barberdi” as registrants of the disputed domain names). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Radio Flyer Inc. v. er nong wu, FA 2011001919893 (Forum Dec. 16, 2020) (“Here, the WHOIS information lists “er nong wu” as the registrant and no information suggests Complainant has authorized Respondent to use the RADIO FLYER mark in any way. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”). The WHOIS information identifies Respondent as “Lock Garage door / locksandgaragedoors.com.” Also, there is no evidence that Complainant authorized Respondent to incorporate the SPECTRUM INTERNET mark in the disputed domain name. Thus, the Panel finds Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant contends Respondent is not using the disputed domain name for any bona fide offering of goods or services, nor any noncommercial or fair use by diverting users to its competing website where it passes off as Complainant. Under Policy ¶¶ 4(c)(i) and (iii), diverting users to a competing webpage nor passing off as a complainant is a bona fide offering of goods or services, nor any noncommercial or fair use. See Invesco Ltd. v. Premanshu Rana, FA 1733167 (Forum July 10, 2017) (“Use of a domain name to divert Internet users to a competing website is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.”); see also Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business). Complainant provides screenshots of the disputed domain name’s resolving webpage, which passes off as Complainant while offering competing services. The Panel thus finds Respondent is not using the disputed domain name for any bona fide offering of goods or services, nor any noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant contends Respondent registered and uses the disputed domain name in bad faith by disrupting Complainant’s business. Under Policy ¶ 4(b)(iii), using a disputed domain name to offer competing services is a disruption of a complainant’s business and thus evidence of bad faith registration and use. See Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii).”). The Panel recalls screenshots of the disputed domain name’s resolving webpage, which passes off as Complainant while offering competing services. The Panel notes that the resolving webpage displays Complainant’s marks (SPECTRUM, SPECTRUM INTERNET and SPECTRUM TV), offers a contact phone number and claims to be an authorized reseller of Complainant. Therefore, the Panel finds Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iii).
Complainant further contends that Respondent had actual knowledge of Complainant's rights in Complainant’s mark at the time it registered the disputed domain name as evidenced by Respondent’s explicit use of the SPECTRUM INTERNET mark in the domain name and on the website. Moreover, Respondent created a website offering the same type of services offered by Complainant. The Panel infers, due to the notoriety of Complainant’s mark and the manner of use of the disputed domain name that Respondent had knowledge of Complainant’s rights in the SPECTRUM INTERNET mark at the time of registering the disputed domain name, and finds that Respondent registered the disputed domain in 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 <spectruminternetplans.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho-Hyun Nahm, Esq., Panelist
Dated: April 28, 2023
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