Charter Communications Holding Company, LLC v. suban Collins
Claim Number: FA2305002042633
Complainant is Charter Communications Holding Company, LLC (“Complainant”), represented by Julie Kent of Holland & Hart LLP, Colorado, USA. Respondent is suban Collins (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spectrumprosper.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 May 1, 2023; Forum received payment on May 1, 2023.
On May 2, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <spectrumprosper.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 May 2, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 22, 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@spectrumprosper.com. Also on May 2, 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 24, 2023, 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 over 32 million customers in the United States. With over 101,000 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 incorporates Complainant’s SPECTRUM mark in its entirety, merely adding the term “Prosper”, which is the name of a town in Texas, USA, and the generic top-level domain (“gTLD”) “.com”.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s SPECTRUM mark and is not commonly known by the disputed domain name. Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent is diverting Complainant’s actual and prospective customers from Complainant’s own website and purporting to offer those customers overlapping and competing services. Respondent uses the disputed domain name to pass off as Complainant: the resolving website intentionally mimics the fonts, layouts, and content of Complainant’s website in an attempt to make it appear like a legitimate website owned or otherwise authorized by Complainant. In particular, Respondent’s unauthorized website displays Complainant’s well-known tagline “The Future of Connectivity is Here,” along with accompanying text from Complainant’s website, which Complainant uses to promote its internet, WiFi, and mobile services offerings. Respondent uses the disputed domain name to engage in an email phishing scheme.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent registered and uses the disputed domain name to pass off as Complainant for commercial gain. The resolving website purports to offer competing services. Respondent registered and uses the disputed domain name to engage in an email phishing scheme. Respondent registered and uses the disputed domain name with constructive and/or actual knowledge of Complainant’s rights in the SPECTRUM mark.
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 services that compete with those 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”).
The disputed domain name incorporates Complainant’s SPECTRUM mark in its entirety, merely adding the term “prosper” – which could refer to a town in the USA, or to the generic/descriptive term “to prosper” – together with the “.com” generic top-level domain (“gTLDs”). Under Policy ¶ 4(a)(i), adding a gTLD and/or generic terms and/or relevant or meaningless letters is generally insufficient in differentiating a disputed domain name from the mark it incorporates. 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.”); see also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Franklin Covey Co. v. franklincoveykorea, FA 1774660 (Forum Apr. 11, 2018) (finding that the <franklincoveykorea.com> domain name is confusingly similar to the FRANKLIN COVEY mark, as “[t]he addition of a geographic term and a gTLD do not negate confusing similarity between a domain name and a mark per Policy ¶ 4(a)(i).”); see also Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) (“The domain name contains the mark in its entirety, with only the addition of the generic letters ‘sb’ and the digits ‘2018,’ plus the generic Top Level Domain (“gTLD”) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Respondent is not licensed or otherwise authorized to use Complainant’s SPECTRUM mark and is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is 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 for the disputed domain name lists the registrant as “suban Collins”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant alleges that the resolving website mimics its legitimate website. In support, it notes that the resolving website reproduces some text from Complainant’s legitimate website, in particular the slogan “The Future of Connectivity is Here”. Complainant provides screenshots of its legitimate website and of the resolving website. From those screenshots, it appears that the color scheme and layout of the resolving website are very different from those of Complainant’s legitimate website, and that no text other than the slogan cited above is literally copied from Complainant’s legitimate website to the resolving website. Consequently, the Panel finds that Complainant has failed to satisfy its burden of proof for this allegation and will not further discuss it.
Complainant notes that MX records have been configured for the disputed domain name and alleges that this indicates that it could be used in furtherance of phishing. However, Complainant does not present any evidence showing that the disputed domain name was actually used in emails. Thus the Panel finds that Complainant has failed to satisfy its burden of proof for this allegation and will not further discuss it.
Complainant presents evidence showing that the resolving website purports to offer services that compete with those of Complainant. Previous Panels have found that use of a disputed domain name to offer goods or services in competition with those of a complainant does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Vanguard Trademark Holdings USA LLC v. Dan Stanley Saturne, FA 1785085 (Forum June 8, 2018) (“Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use” where “Respondent is apparently using the disputed domain name to offer for sale competing services.”). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (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 purports to offer services that compete with those of Complainant. Panels have held that registration and use of a disputed domain name to divert Internet traffic to a competing website offering the same or similar goods or services demonstrates bad faith registration and use under Policy ¶¶ 4(b)(iii) and/or (iv). See ZIH Corp. v. ou yang lin q, FA 1761403 (Forum Dec. 29, 2017) (Finding bad faith where Respondent used the infringing domain name to disrupt Complainant’s business by diverting Internet users from Complainant’s website to Respondent’s website where it offered competing printer products); see also Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA 1409001579141 (Forum Oct. 15, 2014) (“Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant.”). Thus the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iii) and/or Policy ¶ 4(b)(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 <spectrumprosper.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: May 24, 2023
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