Chegg Inc. v. yang qijin
Claim Number: FA1503001610050
Complainant is Chegg Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is yang qijin (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cheegg.com>, registered with HANGZHOU AIMING NETWORK CO.,LTD.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 17, 2015; the Forum received payment on March 17, 2015. The Complaint was received in both Chinese and English.
On March 17, 2015, HANGZHOU AIMING NETWORK CO.,LTD confirmed by e-mail to the Forum that the <cheegg.com> domain name is registered with HANGZHOU AIMING NETWORK CO.,LTD and that Respondent is the current registrant of the name. HANGZHOU AIMING NETWORK CO.,LTD has verified that Respondent is bound by the HANGZHOU AIMING NETWORK CO.,LTD 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 24, 2015, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of April 13, 2015 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@cheegg.com. Also on March 24, 2015, the Chinese 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, the Forum transmitted to the parties a Notification of Respondent Default.
On April 17, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the 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
1. Complainant owns the CHEGG mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,191,844, registered Jan. 2, 2007). Complainant uses the CHEGG mark in connection with its online book rental service, homework assistance, scholarships, course review, and internship posting for students in high school and college.
2. The <cheegg.com> domain name is confusingly similar to Complainant’s CHEGG mark. The<cheegg.com> domain name misspells the CHEGG mark by inserting an additional “e” and adding a generic top-level domain (“gTLD”) “.com” to the disputed domain name.
3. Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, as the WHOIS record for the disputed domain name does not reflect that Respondent is commonly known by the <cheegg.com> domain name. Further, Respondent is not sponsored by Complainant in any way.
4. Additionally, Respondent lacks rights or legitimate interests in the <cheegg.com> domain name, as evidenced by Respondent’s failure to use the disputed domain name in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use.
5. Respondent’s disputed domain name features competing hyperlinks on its resolving website, diverting Internet users who are seeking Complainant’s website to Respondent’s website. Additionally, Respondent has engaged in typosquatting, which is further evidence that Respondent lacks rights and legitimate interests in respect of the disputed domain name.
6. Respondent’s use of the disputed domain name disrupts Complainant’s business by diverting Internet customers seeking Complainant’s website. Further, Respondent intentionally attracts, for commercial gain, Internet users to its websites by creating a likelihood of confusion with Complainant’s mark.
7. Finally, Respondent has engaged in typosquatting, which is additional evidence of bad faith under Policy ¶ 4(a)(iii).
8. The <cheegg.com> domain name was registered January 21, 2009.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the CHEGG mark. Respondent’s domain name is confusingly similar to Complainant’s CHEGG mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <cheegg.com> domain name, and that Respondent registered and uses the domain name in bad faith.
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant owns the CHEGG mark through its registration with the USPTO (e.g., Reg. No. 3,191,844, registered Jan. 2, 2007). Complainant states that it uses the CHEGG mark in connection with its online book rental service, homework assistance, scholarships, course review, and internship posting for students in high school and college. Complainant’s valid registration of the CHEGG mark with the USPTO sufficiently demonstrates Complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i), even though Respondent reportedly resides in China. See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”). Accordingly, the Panel finds that Complainant’s USPTO registration is sufficient under Policy ¶ 4(a)(i).
Complainant asserts that the <cheegg.com> domain name is confusingly similar to Complainant’s CHEGG mark. The <cheegg.com> domain name misspells the CHEGG mark by inserting an additional “e” and adding a generic top-level domain (“gTLD”) “.com” to the disputed domain name. Confusing similarity exists where a domain names vary by only one letter for an established mark. See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive). Therefore, the Panel finds the <cheegg.com> domain name is confusingly similar to Complainant’s CHEGG mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the disputed domain names. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c). See also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant argues that Respondent has no rights or legitimate interests in the disputed domain name. Specifically, Complainant asserts that Respondent is not commonly known by the disputed domain name, as the WHOIS record for the disputed domain name does not reflect that Respondent is commonly known by the <cheegg.com> domain name. The WHOIS information for the disputed domain name lists “yang qijin” as the registrant of record. Further, Complainant states that Respondent is not sponsored by Complainant in any way. The Panel agrees that the uncontradicted record is sufficient to establish Respondent’s lack of rights to the <cheegg.com> domain name under Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name).
Additionally, Complainant asserts that Respondent lacks rights or legitimate interests in the <cheegg.com> domain name, as evidenced by Respondent’s failure to use the disputed domain name in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Respondent’s domain name features competing hyperlinks on its resolving website, diverting Internet users who are seeking Complainant’s website to Respondent’s website. Some of the featured hyperlinks include “School Books,” “Textbook Prices,” and “Compare Textbook Prices.” A respondent’s use of competing hyperlinks is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use. See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use). The Panel concludes that Respondent’s actions here are not a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a “noncommercial or fair use” pursuant to Policy ¶ 4(c)(iii).
Complainant further argues that Respondent has engaged in typosquatting, which is additional evidence that Respondent lacks rights and legitimate interests with respect of the disputed domain name. Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had “engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”). The Panel finds that Respondent’s typosquatting activity is evidence that Respondent lacks rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent’s use of the disputed domain name disrupts Complainant’s business by diverting Internet customers seeking Complainant’s website. Complainant asserts that Respondent uses pay-per-click hyperlinks on the resolving website, which redirects users to various third-party websites. Internet users may reach websites such as <bookrenter.com> and <campusbookrentals.com >, Complainant’s competitors, by clicking on these links. The use of hyperlinks to disrupt and compete with a complainant’s business is evidence of bad faith under Policy ¶ 4(b)(iii). See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“Respondent currently utilizes the disputed domain name, <usaa-insurance.net>, to resolve to a website featuring links to third-party competitors of Complainant. The Panel finds such use establishes Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii).”). This Panel concludes that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iii).
Further, Complainant argues that Respondent intentionally attracts, for commercial gain, Internet users to its websites by creating a likelihood of confusion with Complainant’s mark. Complainant contends that Respondent presumably receives “click through” fees through the use of its disputed domain name, and registered the disputed domain name to attract and mislead consumers for its own profit. Hyperlinks are typically associated with referral fees, and a respondent’s use is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”). The Panel finds that Respondent has engaged in bad faith use under Policy ¶ 4(b)(iv).
Finally, Complainant contends that Respondent has engaged in typosquatting, which is further evidence of bad faith under Policy ¶ 4(a)(iii). Internet users would merely need to mistype the CHEGG mark by typing an additional “e” to be mistakenly directed to Respondent’s <cheegg.com> resolving website rather than Complainant’s. Creating a domain name which takes advantage of common errors when Internet users are seeking a site by typing a registered or common law mark, amounts to bad faith registration under Policy ¶ 4(a)(iii). See Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005) (finding that the respondent’s registration and use of the <nextell.com> domain name was in bad faith because the domain name epitomized typosquatting in its purest form). This Panel accordingly finds that Respondent’s typosquatting conduct is additional evidence of bad faith pursuant to Policy ¶ 4(a)(iii).
The Panel finds Complainant has satisfied 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 <cheegg.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: April 23, 2015
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