Chegg Inc. v. Company CEO / Qulity Programming
Claim Number: FA1503001610061
Complainant is Chegg Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Company CEO / Qulity Programming (“Respondent”), Oregon, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <chwgg.com>, registered with Dynadot, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 17, 2015; the Forum received payment on March 17, 2015.
On March 17, 2015, Dynadot, LLC confirmed by e-mail to the Forum that the <chwgg.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, LLC 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 18, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 7, 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@chwgg.com. Also on March 18, 2015, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On April 14, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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. Respondent’s <chwgg.com> domain name is confusingly similar to Complainant’s CHEGG.COM mark.
2. Respondent does not have any rights or legitimate interests in the <chwgg.com> domain name.
3. Respondent registered and uses the <chwgg.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant owns the CHEGG.COM mark through its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No.3,970,742, registered May 31, 2011). Complainant uses the CHEGG.COM mark in connection with its online book rental service, homework assistance, scholarships, course review, and internship posting for students in high school and college.
Respondent registered the <chwgg.com> domain name on August 30, 2010, and uses it to feature hyperlinks in competition with 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(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.”).
The Panel finds that Complainant owns the CHEGG.COM mark through its registration with the USPTO, which is sufficient to establish rights in the mark pursuant to Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [Complainant’s] mark is registered with the USPTO, Complainant has met the requirements of Policy ¶ 4(a)(i).”).
Respondent’s <chwgg.com> domain name is a simple misspelling of Complainant’s CHEGG.COM mark. Prior panels have found that if a respondent misspells a registered mark simply by substituting a single character, then the disputed domain name is confusingly similar under Policy ¶ 4(a)(i). 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 that the <chwgg.com> domain name is confusingly similar to Complainant’s CHEGG.COM mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant asserts that Respondent has no rights or legitimate interests in the <chwgg.com> domain name and is not commonly known by the disputed domain name. The WHOIS record for the disputed domain name lists “Company CEO / Qulity Programming” as the registrant of record. Complainant also states that it has never authorized Respondent to use the CHEGG.COM trademark. Thus, the Panel finds that Respondent lacks rights to the disputed domain name under Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Complainant also asserts that Respondent lacks rights or legitimate interests in the <chwgg.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. Complainant claims that Respondent’s disputed domain name features competing hyperlinks on the resolving website, diverting Internet users who are seeking Complainant’s website to Respondent’s website. The Panel notes featured hyperlinks such as “Cheap Textbooks For Rent” and “Save Big on Textbooks.” Prior panels have found that a respondent’s use of competing hyperlinks is neither a bona fide offering of goods or services nor for a legitimate noncommercial or fair use. See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (holding that the respondent had not demonstrated a bona fide offering of goods or services or a legitimate noncommercial or fair use when “the website resolving from the disputed domain name displays links to travel products and services, which directly compete with Complainant’s business”). The Panel finds that Respondent’s use of the disputed domain name is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), and is not a “noncommercial or fair use” pursuant to Policy ¶ 4(c)(iii).
Complainant also argues that Respondent has engaged in typosquatting, which further demonstrates Respondent’s lack of rights or legitimate interests in respect of the disputed domain name. Taking advantage of Internet users’ typographical errors, known as typosquatting, has been found by prior panels to be illustrative of respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii). See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”). The Panel finds that Respondent’s typosquatting is further evidence of Respondent’s lack of rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
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 such as <valorebooks.com> and <cheapesttextbooks.com>, Complainant’s competitors. Previous panels have found that 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).”). The Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iii).
Respondent intentionally attracts, for commercial gain, Internet users to its websites and hyperlinks by creating a likelihood of confusion with Complainant’s mark, presumably receiving “click through” fees. The Panel finds that this constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes).
Respondent has also engaged in typosquatting, itself evidence of bad faith under Policy ¶ 4(a)(iii). Internet users could easily mistype the CHEGG.COM mark by typing a “w” instead of an “e” and be diverted to Respondent’s <chwgg.com> website rather than Complainant’s. Past panels have found that respondents who take advantage of common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii). See Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Nat. Arb. Forum Oct. 28, 2004) (“By engaging in typosquatting, [r]espondent has registered and used the <vangard.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).”). The Panel finds that Respondent’s typosquatting is bad faith pursuant to Policy ¶ 4(a)(iii).
The Panel finds that 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 <chwgg.com> domain name be TRANSFERRED from Respondent to Complainat.
Sandra J. Franklin, Panelist
Dated: April 20, 2015
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