The Complainant is Charter Communications Holding Company, LLC of St. Louis, Missouri, United States of America ("United States"), represented by Thompson Coburn LLP, United States.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc. of Panama City, Panama / vinay kochhar, avv of Delhi, India. 2. The Domain Name and Registrar
The disputed domain name is registered with NameCheap, Inc. (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 27, 2017. On November 28, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same date, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 4, 2017, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amended Complaint. The Complainant filed an amended Complaint on December 8, 2017.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 11, 2017. In accordance with the Rules, paragraph 5, the due date for Response was December 31, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on January 2, 2018.
The Center appointed Alistair Payne as the sole panelist in this matter on January 19, 2018. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
The Complainant provides telecommunications, television, Internet, phone and other related goods and services and is the second largest provider of cable television services in the United States. It commenced using the SPECTRUM mark in relation to many of its services in 2014 and owns a family of SPECTRUM marks in the United States including, in particular: SPECTRUM BUSINESS (5028677 registered on August 23, 2016), SPECTRUM INTERNET (5098550 registered on December 13, 2016), SPECTRUM VOICE (5098473 registered on December 13, 2016), SPECTRUM REACH (5101071 registered on December 13, 2016), SPECTRUM GUIDE (4956860 registered on May 10, 2016) and CHARTER SPECTRUM (4618726 registered on October 7, 2014).
The disputed domain name was registered on August 3, 2017, and resolves to a website that offers "Spectrum customer support service" to provide assistance with "Charter Spectrum Internet, Voice, TV, Email, or any other Spectrum-related services". The website also provides a "Charter Spectrum Helpline Number". 5. Parties' Contentions A. Complainant
The Complainant submits that it owns United States trade marks as set out above and referred to below as the "SPECTRUM Marks". It notes that it also owns a trade mark registration for CHARTER under United States trade mark registration number 3899216.
It says that it has more than 26 million residential and business customers in 41 states, and is America's fastest growing TV, Internet and voice company. It notes that it began using the term "Spectrum" in connection with its services in 2014 and since that time, it has continuously and prominently used the term "Spectrum" in advertisements for, and to actively promote, its various services including on its' website. As a result, it contends that the SPECTRUM Marks are recognized by consumers across the United States as identifying the source of the Complainant's services.
The Complainant says that the disputed domain name contains the word "spectrum" and does nothing more than add on the descriptive phrase "customer service". It submits that the disputed domain name is therefore confusingly similar to its family of SPECTRUM Marks, particularly when one considers the context of the website associated with the disputed domain name. In these circumstances it says that the addition of the phrase "customer service" is likely to increase confusion, as consumers seeing "" are likely to believe that the services offered on the website are legitimate customer support services for the Complainant's telecommunications services.
The Complainant confirms that it has not licensed the SPECTRUM Marks to the Respondent and that the Respondent has never been affiliated with, connected to, or sponsored by, the Complainant. It notes further that the Respondent has never obtained any permission to associate itself with the Complainant and to provide customer care services as the Complainant's authorised dealer/representative and to the Complainant's knowledge is not otherwise known by the disputed domain name. Contrary to the "Authorized Retailer" language that is being used on the website associated with the disputed domain name, it says that the Respondent is not an authorised retailer of the Complainant and never has been.
The Respondent, says the Complainant, has registered and is using the disputed domain name in order to perpetuate a fraud on consumers, by holding itself out as an entity that is authorised by the Complainant to provide support services related to the Complainant's telecommunications services, when that is not the case. Aside from purportedly offering other technical support, the Complainant notes that the Respondent states that it provides support for "Charter bill pay issues" apparently in an attempt to collect payments owed to the Complainant from the Complainant's customers, or to gather other sensitive information from the Complainant's customers. The Complainant confirms that it has not authorised the Respondent to collect payments or handle any other bill pay issues on its behalf.
As far as bad faith is concerned, the Complainant notes that the Respondent registered the disputed domain name several years after the Complainant had started making widespread use of and obtaining registrations for the SPECTRUM Marks. The Complainant submits that, based on the degree of renown attaching to the SPECTRUM Marks by the date of registration of the disputed domain name, the Respondent must have been aware of the Complainant's business and use of the mark SPECTRUM. It says that this inference is affirmed by the Complainant's use of both the SPECTRUM Marks and the CHARTER mark on its website at the disputed domain name and by its fraudulent representation on the website that it is the Complainant's representative.
The Complainant asserts that a domain name utilising the mark SPECTRUM will inevitably attract a significant number of Internet users seeking information about the Complainant's services in circumstances that this is coupled with a website that repeatedly references the CHARTER mark and SPECTRUM Marks. It says that knowing this, the Respondent registered the disputed domain name in order to attract those users to its website and has used the disputed domain name in connection with a website that falsely identifies the Respondent as an authorised retailer of the Complainant. In doing so, it is likely to cause confusion as to its affiliation with the Complainant and to lead consumers incorrectly to believe that the Complainant has endorsed or authorised the associated website when that is not the case. As the Respondent has offered to provide bill pay services, which could include the collection of payments that are intended for the Complainant, the website itself indicates that the Respondent is operating it for financial gain. For all of these reasons the Complainant submits that the Respondent's use and registration of the disputed domain name is in bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complainant has demonstrated that it owns the SPECTRUM Marks. With the exception of CHARTER SPECTRUM, this family of marks starts with the term "spectrum" and then adds a term relevant to the Complainant's activities such as "business", "Internet", "voice", "reach" and "guide". In each of these marks the key distinguisher is the term "spectrum". The disputed domain name follows this pattern by adding the ordinary English phrase "customer service" to "Spectrum". The Panel finds that the disputed domain name clearly incorporates the "spectrum" element of the Complainant's marks and thus is confusingly similar to such marks for purposes of the Policy. Furthermore, on a side by side analysis with each of this group of SPECTRUM Marks people are likely to view the disputed domain name as belonging to this family of marks and as a result the Panel finds that the disputed domain name is confusingly similar to this group of SPECTRUM Marks. This degree of confusion will only be exacerbated when Internet users arrive at the website to which the disputed domain name resolves.
It follows that the Complaint succeeds under the first element of the Policy. B. Rights or Legitimate Interests
The Complainant has confirmed that it has not licensed the SPECTRUM Marks to the Respondent and that the Respondent has never been affiliated with, connected to, or sponsored by the Complainant. It has also affirmed that the Respondent has never obtained permission to associate itself with the Complainant or to provide customer care services as the Complainant's authorised dealer/representative and is categorically not the Complainant's authorised retailer. The Complainant asserts that, to its knowledge, the Respondent is not otherwise known by the disputed domain name.
Additionally, the Complainant contends that the Respondent is using the disputed domain name to perpetuate a fraud by attempting to collect payments owed to the Complainant, and to gather other sensitive information from the Complainant's customers.
The Panel finds that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name and that the Respondent has failed to rebut this case. It is apparent that the Respondent is attempting to hold itself out fraudulently as being an authorised agent of, or of having some association with, the Complainant when this is not the case. This is not bona fide or legitimate conduct and, in addition, for the reasons set out under Part C below, the Panel finds that the Complaint succeeds under this element of the Policy. C. Registered and Used in Bad Faith
The disputed domain name was registered some years after the Complainant first used and registered the SPECTRUM Marks. By that date, the Complainant had made a wide use of the SPECTRUM Marks in its business and advertising activities in the United States and on its website. Based on the degree of renown attaching to the SPECTRUM Marks by the date of registration of the disputed domain name, the Respondent must have been aware of the Complainant's business and use of the mark SPECTRUM. It says that this inference is affirmed by the Complainant's use of both the SPECTRUM Marks and the CHARTER mark on its website at the disputed domain name and by its fraudulent representation on that website that it is the Complainant's representative.
The Panel agrees with the Complainant's assessment that there is an overwhelming inference that the Respondent was well aware of the Complainant and of its use of the SPECTRUM Marks when it registered the disputed domain name. Not only had the Complainant made a substantial use of its SPECTRUM Marks by that date, but the evidence of use on the Respondent's website of the Complainant's SPECTRUM Marks confirms this inference.
Under paragraph 4(b)(iv) of the Policy there is deemed evidence of registration and use of a domain name in bad faith where it is found that the Respondent has intentionally attempted to attract Internet users for commercial gain to its website by creating a likelihood of confusion as to source, sponsorship, affiliation or endorsement. The Respondent in this case has used the disputed domain name with a view to confusing Internet users into thinking that the Respondent has some affiliation with the Complainant that it does not have and that the services advertised on the website at the disputed domain name have been authorised or approved by the Complainant. The Complainant clearly has no relationship with the Respondent and the Respondent's conduct in confusing and diverting Internet users in this way in order to obtain their details for its own commercial gain, or in order to inveigle them into paying bills that are due to the Complainant to the Respondent through this website, is fraudulent and in bad faith. This is clearly a case of cybersquatting that falls squarely within the Policy.
Accordingly, the Panel finds that the disputed domain has both been registered and used in bad faith and the Complaint also succeeds under this element of the Policy. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Alistair Payne
Sole Panelist
Date: February 2, 2018
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