Chegg, Inc. v. Above.com Domain Privacy
Claim Number: FA1503001608108
Complainant is Chegg, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Above.com Domain Privacy (“Respondent”), Austrailia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <chengg.com>, registered with ABOVE.COM PTY 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 4, 2015; the Forum received payment on March 4, 2015.
On March 5, 2015, ABOVE.COM PTY LTD. confirmed by e-mail to the Forum that the <chengg.com> domain name is registered with ABOVE.COM PTY LTD. and that Respondent is the current registrant of the name. ABOVE.COM PTY LTD. has verified that Respondent is bound by the ABOVE.COM PTY 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 6, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 26, 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@chengg.com. Also on March 6, 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 2, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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
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. The <chengg.com> domain name is confusingly similar to Complainant’s CHEGG mark. The <chengg.com> domain name misspells the CHEGG mark by adding the letter “n” and adding a generic top-level domain (“gTLD”) “.com” to the disputed domain name.
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 disputed domain name. Moreover, Respondent is not sponsored or affiliated with Complainant. Further, Respondent lacks rights or legitimate interests in the <chengg.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 disputed domain name features competing hyperlinks on its resolving website, diverting Internet users who are seeking Complainant’s website to Respondent’s websites. Respondent has engaged in typosquatting, which is further evidence that Respondent lacks rights and legitimate interests in respect of the disputed domain name.
Respondent has engaged in bad faith registration and use of the<chengg.com> domain name. 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 website by creating a likelihood of confusion with Complainant’s mark. Finally, Respondent has engaged in typosquatting, which is additional evidence of bad faith under Policy ¶ 4(a)(iii).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Chegg, Inc., has rights in 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.
Respondent, Above.com Domain Privacy, registered the <chengg.com> domain name on October 3, 2009. Respondent’s disputed domain name features competing hyperlinks on its resolving website.
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.”).
Complainant has rights in the CHEGG mark under Policy ¶ 4(a)(i) through registration with the USPTO. Registration of a mark with a trademark authority is sufficient to establish rights in the mark pursuant to Policy ¶ 4(a)(i), even when Respondent does not reside in the country where the mark is registered. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also W Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction).
The disputed domain name is confusingly similar to Complainant’s CHEGG mark under Policy ¶ 4(a)(i). The <chengg.com> domain name misspells the CHEGG mark by adding the letter “n” and adding a generic top-level domain “.com.” See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (“The mere addition of a single letter to the complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i).”).
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), and then 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).
Respondent has no rights or legitimate interests in the disputed domain name. The WHOIS information for the <chengg.com> domain name lists “Above.com Domain Privacy” as the registrant of record. Respondent is not sponsored or affiliated with Complainant. Respondent is not commonly known by 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).
Respondent has failed to use the <chengg.com> domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i), or for a legitimate noncommercial or fair use Policy ¶ 4(c)(iii). 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. 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 United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“The disputed domain name, <usaa-insurance.net>, currently resolves to a website displaying Complainant’s marks and contains links to Complainant’s competitors. The Panel finds this to be neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii).”).
Respondent has also engaged in typosquatting, which further shows Respondent’s lack of rights or legitimate interests in the <chengg.com> domain name. Typosquatting is evidence of Respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii). See LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”).
Respondent’s use of the <chengg.com> domain name disrupts Complainant’s business by diverting Internet customers seeking Complainant’s website away from Complainant’s business. Respondent presumably uses pay-per-click hyperlinks on the resolving website, which redirect users to websites of Complainant’s competitors. The use of hyperlinks to disrupt and compete with a complainant’s business is evidence of bad faith registration and use 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).”).
Further, Respondent intentionally attracts, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s mark. Respondent presumably receives “click-through” fees through the use of the <chengg.com> domain name, and registered the domain name to attract and mislead consumers for its own profit. Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iv). See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
Finally, Respondent has engaged in typosquatting, which is evidence of bad faith 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).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <chengg.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: April 15, 2015
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