Charter Communications Holding Company, LLC v. Khurram Haider
Claim Number: FA2304002040981
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Corsearch, Inc., Texas, USA. Respondent is Khurram Haider (“Respondent”), Pakistan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spectrumbundledeals.com>, registered with Hosting Concepts B.V. d/b/a Registrar.eu.
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.
The Honorable Neil Anthony Brown KC as Panelist.
Complainant submitted a Complaint to Forum electronically on April 20, 2023; Forum received payment on April 20, 2023.
On April 21, 2023, Hosting Concepts B.V. d/b/a Registrar.eu confirmed by e-mail to Forum that the <spectrumbundledeals.com> domain name is registered with Hosting Concepts B.V. d/b/a Registrar.eu and that Respondent is the current registrant of the name. Hosting Concepts B.V. d/b/a Registrar.eu has verified that Respondent is bound by the Hosting Concepts B.V. d/b/a Registrar.eu 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 April 26, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 16, 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@spectrumbundledeals.com. Also on April 26, 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 May 18, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed The Honorable Neil Anthony Brown KC 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 made the following contentions.
Complainant, Charter Communications Holding Company, LLC, offers broadband connectivity and cable services. Complainant has rights in the SPECTRUM mark through its registration with multiple trademark organizations including the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 6,311,602, registered on April 6, 2021). See Compl. Ex. E; see also Compl. Ex. F. Respondent’s <spectrumbundledeals.com> domain name is identical or confusingly similar to Complainant’s SPECTRUM mark as it incorporates the mark while adding the generic terms “bundle” and “deals”, as well as the “.com” generic top-level domain (“gTLD”) to form.
Respondent lacks rights and legitimate interests in the <spectrumbundledeals.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its SPECTRUM 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. Additionally, Respondent fails to make active use of the disputed domain name’s resolving webpage. Also, 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.
Respondent registered and uses the <spectrumbundledeals.com> domain name in bad faith. Respondent disrupts Complainant’s business while attracting users for commercial gain and creating a likelihood of confusion. Further, Respondent uses the disputed domain name to offer competing goods and services. Also, Respondent has failed to make active use of the disputed domain name’s resolving webpage. Additionally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the SPECTRUM INTERNET mark. Furthermore, Respondent engages in phishing through an email address associated with the disputed domain name. Finally, Respondent’s bad faith may be demonstrated through its use of a privacy service in the disputed domain name’s WHOIS information.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1.Complainant is a United States company engaged in the communications and related industries through the SPCTRUM brand.
2. Complainant has established its rights in the SPECTRUM mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 6,311,602, registered on April 6, 2021).
3. Respondent registered the <spectrumbundledeals.com> domain name on January 5, 2023.
4. Respondent created MX records likely using emails associated with the disputed domain name and with the probability of passing itself off as Complainant in the furtherance of a phishing scheme.
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 first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant submits that it has rights in the SPECTRUM mark through its registration of the mark with the USPTO (e.g., SPECTRUM Reg. No. 6,311,602, which was registered on April 6, 2021). See Compl. Ex. F. Registration of a mark with the USPTO is a valid showing of rights in a mark under Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Since Complainant provides evidence of its registration of the SPECTRUM mark with the USPTO, the Panel find that Complainant has demonstrated rights in the SPECTRUM mark per Policy ¶ 4(a)(i).
The next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s SPECTRUM mark. Complainant argues that the <spectrumbundledeals.com> domain name is confusingly similar to its SPECTRUM mark since it uses the entire mark, simply adding the generic words “bundle” and “deals” as well as the “.com” gTLD. When a disputed domain name wholly incorporates another’s mark, panels have found additional generic words insufficient to defeat a finding of confusing similarity. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”). Similarly, gTLDs are irrelevant for purposes of Policy ¶ 4(a)(i) analysis. See Blue Cross and Blue Shield Association v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs.”). Given that Respondent only adds the above generic words and a gTLD to Complainant’s SPECTRUM mark, the Panel finds that the <spectrumbundledeals.com> domain name is confusingly similar to Complainant’s SPECTRUM mark under Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that 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 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”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s SPECTRUM mark and to use it in its domain name, adding the generic words “bundle” and “deals” which do not negate the confusing similarity between the domain name and the mark;
(b) Respondent registered the <spectrumbundledeals.com> domain name on January 5, 2023;
(c) Respondent created MX records likely using emails associated with the disputed domain name to pass itself off as Complainant in the furtherance of a phishing scheme;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant argues that Respondent is not commonly known by the <spectrumbundledeals.com> domain name, nor has Complainant authorized or licensed Respondent to use its SPECTRUM 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 “Khurram Haider.” See Registrar Verification Email. Also, there is no evidence that Complainant authorized Respondent to incorporate the SPECTRUM mark in the <spectrumbundledeals.com> domain name. Thus, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii);
(f) Complainant contends that Respondent is not using the <spectrumbundledeals.com> 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 itself off as Complainant. Under Policy ¶¶ 4(c)(i) and (iii), diverting users to a competing webpage and passing off as a complainant is not 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”. Complainant provides screenshots of the resolving webpage, which passes itself off as Complainant while offering services that compete with those of Complainant. See Compl. Ex. H. Thus, as the Panel agrees, it 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);
(g) Complainant argues that Respondent does not use the <spectrumbundledeals.com> domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent has used the disputed domain name to direct internet users to an inactive webpage. Failure to make active legitimate use of a disputed domain name is not considered a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Nutri/System IPHC, Inc. v. Usama Ayub, FA1725806 (Forum June 5, 2017) (holding that “Respondent does not use the <nutrisystemturbo.us> domain for a bona fide offering of goods or services because the domain name resolves to a website that currently is designated as ‘under construction.’”.). Here, Complainant has provided a screenshot of the use of the disputed domain name that currently directs to a landing page that displays a 404 error page. See Compl. Ex. H. Therefore, the Panel finds Respondent fails to use the disputed domain name legitimately for any bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii);
(h) Complainant argues that Respondent uses the <spectrumbundledeals.com> domain name in furtherance of a phishing scheme, which may not qualify as a bona fide offering of goods or services, nor a legitimate non-commercial or fair use. Phishing has been defined by past panels as a practice that defrauds Internet users into sharing valuable personal information through the use of emails, pop-ups, or other methods. See Juno Online Servs., Inc. v. Iza, FA 245960 (Forum May 3, 2004) (defining “phishing” as “the use of e-mails, pop-ups or other methods to trick Internet users into revealing credit card numbers, passwords, social security numbers and other personal information that may be used for fraudulent purposes”). Complainant tenders evidence of MX records attached to the disputed domain name that suggests Respondent used or in all probability would use the <spectrumbundledeals.com> domain name to gather valuable personal information via fraudulent emails for commercial gain. See Compl. Ex. P. As the Panel agrees, it finds Respondent is not using the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
All of these matters go to make out the prima facie case against Respondent.
As Respondent has not filed a formal Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent does not have a right or legitimate interest in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, Complainant argues that Respondent registered and uses the <spectrumbundledeals.com> 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 Complainant’s screenshots of Respondent’s competing website, which purport to offer the same services as Complainant. See Compl. Ex. H. Thus, the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iii).
Secondly, Complainant submits that Respondent registered and uses the <spectrumbundledeals.com> domain name in bad faith by attracting users for commercial gain and creating a likelihood of confusion. Under Policy ¶ 4(b)(iv), using a domain name to attract users to a competing webpage for commercial gain while creating confusion among users is evidence of bad faith registration and use. See MySpace, Inc. v. Myspace Bot, FA 672161 (Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme). The Panel again notes that the resolving webpage passes Respondent off as Complainant and offers competing services for commercial gain. See Compl. Ex. H. Therefore, as the Panel agrees, it finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Fourthly, Complainant notes that the <spectrumbundledeals.com> domain name was registered with a privacy service. See Compl. Ex. I. A respondent’s attempt to conceal its identity through registering a disputed domain name with a privacy service may support a finding of bad faith registration. See Robert Half International Inc. v. robert arran, FA 1764367 (Forum Feb. 5. 2018) (“Respondent's use of a privacy registration service in an attempt to conceal his identity, though not itself dispositive, is a further indication of bad faith.”). As the Panel agrees, it accepts Respondent’s use of a privacy service as evidence of bad faith registration under Policy ¶ 4(a)(iii).
Fifthly, Complainant argues that Respondent registered the <spectrumbundledeals.com> domain name with bad faith actual knowledge of Complainant , its activities and its rights in the SPECTRUM mark. Under Policy ¶ 4(a)(iii), actual knowledge of a Complainant’s rights in a mark is sufficient to demonstrate bad faith and may be established where a respondent uses the domain name to offer competing services which Respondent has done. See Google Inc. v. Ahmed Humood, FA1411001591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to and in competition with Complainant.”). The Panel notes that the resolving webpage offers services competing with Complainant. See Compl. Ex. H. As the Panel agrees, it finds Respondent had actual knowledge of Complainant’s rights in the mark under Policy ¶ 4(a)(iii) showing bad faith registration.
Sixthly, Complainant submits that Respondent registered and uses the <spectrumbundledeals.com> domain name in bad faith by using an email address associated with the domain name to purport to engage in phishing. Under Policy ¶ 4(a)(iii), using an email address to engage in phishing is evidence of bad faith registration and use. See Emdeon Business Services, LLC v. HR Emdeon Careers, FA1507001629459 (Forum Aug. 14, 2015) (finding that the respondent had engaged in an email phishing scheme indicating bad faith under Policy ¶ 4(a)(iii), where respondent was coordinating the disputed domain name to send emails to Internet users and advising them that they had been selected for a job interview with the complainant and was persuading the users to disclose personal information in the process). Complainant provides screenshots of a document which shows that an email address was created in association with the disputed domain name. See Compl. Ex. P. As the Panel agrees, it finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <spectrumbundledeals.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Neil Anthony Brown KC
Panelist
Dated: May 19, 2023
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