DECISION

 

Chai Research Corp. v. Philipp Lukits / ECOM BROS Media e.U.

Claim Number: FA2402002084180

PARTIES

Complainant is Chai Research Corp. ("Complainant"), represented by John Berryhill, Pennsylvania, USA. Respondent is Philipp Lukits / ECOM BROS Media e.U. ("Respondent"), Austria.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <chaiapp.pro>, registered with NameCheap, Inc.

 

PANEL

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.

 

Alan L. Limbury, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on February 16, 2024. Forum received payment on February 16, 2024.

 

On February 16, 2024, NameCheap, Inc. confirmed by e-mail to Forum that the <chaiapp.pro> 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 February 21, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 12, 2024 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@chaiapp.pro. Also on February 21, 2024, 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 March 13, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury as Panelist.

 

Pursuant to Rule 12 of the Policy, on March 15, 2024, Forum sent to Respondent by email an Order from the Panel requesting Respondent to confirm whether or not he is the registrant of the <chaiapp.pro> domain name and have his confirmation e-mailed to Forum and Complainant no later than March 20, 2023

 

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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PRELIMINARY ISSUE: Redaction sought of Respondent's name

Complainant submits that it appears that the actual registrant may have copied contact information for Mr. Philipp Lukits, a legitimate web developer in Austria. However, the email address used by the registrant of the domain name does not correspond to either of the two published email addresses for Mr. Lukits. Given the pattern, timing and content of domain registrations undertaken by the respondent in FA2312002076946 and FA2402002084557, it is quite plausible that Mr. Lukits identity is being falsely used, and that Mr. Lukits should be given an opportunity to respond. If his identity is being falsely used, then the Panel should exercise its redaction power in the decision and case caption in order to avoid smearing an innocent party. The Complainant is required to follow the rules here, so it is entirely up to the Panel whether to compound the registrant's cybersquatting by defaming a possibly innocent individual.

 

In light of this request, on March 15, 2024, the Panel issued the following procedural Order, which Forum sent by email to the two email addresses of Mr. Lukits supplied by Complainant:

 

"Pursuant to Rule 12 of ICANN's Uniform Domain Name Dispute Resolution Policy, the Respondent Philipp Lukits is hereby requested to confirm whether or not he is the registrant of the <chaiapp.pro> domain name and have his confirmation e-mailed to Forum and Complainant no later than March 20, 2023."

  

No response to the Order was received by Forum. Accordingly, the Panel does not consider it appropriate to redact the identity of Respondent from this decision.

 

PARTIES' CONTENTIONS

A. Complainant

Incorporated in Delaware in January 2022, Complainant, Chai Research Corp., has quickly established a reputation for leading research and applications of chat dialogs with artificial intelligence. By October 2022, Complainant's AI chat platform had begun very fast growth, with 100,000 daily users and 300 million monthly messages. By March 2023, the chat volume handled by Complainant's platform was up to 500 million messages per month.

 

Complainant's "CHAI" AI chat app is available on the Apple app store and is rated at 4.5 out of 5 with more than 80,000 reviews. In the Google Play store it has received 122,000 reviews and over 1 million downloads.

 

By June 2023, Complainant had developed a substantial reputation and has been conducting substantial business as "Chai Research" and has had substantial success with its "CHAI" apps for iPhone and Android and with its "CHAI" AI chat app, such that consumers in the relevant market recognize "CHAI" as a source indicator of Complainant's app products and services.

 

Respondent's <chaiapp.pro> domain name fully incorporates Complainant's "CHAI" mark. The addition of "app" to the domain name further enhances the confusing similarity of the domain name with Complainant's mark, since Complainant's principal product is an app.

 

Respondent lacks rights or legitimate interests in the <chaiapp.pro> domain name since Respondent is not licensed or authorized to use Complainant's CHAI mark and there is no evidence to suggest that Respondent is commonly known by that name. Additionally, Respondent does not use the domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the domain name to construct a website designed to fool visitors into believing it is associated with Complainant but linking to a different chat service named GPT Girlfriend. Respondent's website purports to provide access to "Chai AI - Your Ultimate NSFW Chat Adventure" where the acronym for "not safe for work" indicates adult material. The "bait and switch" character of the webpage is thus obvious even without knowledge of Complainant's product in particular, because Respondent's webpage does not, in fact, connect the user with anything going by the name of the service Respondent's webpage purports to purvey.

 

Respondent's registration and use of the <chaiapp.pro> domain name is for the sole purpose of using Complainant's brand and reputation to attract traffic and then pass that traffic to a competitive low-quality app for which the principal advertised feature is that it offers "NSFW" - i.e. "not safe for work" pornographic conversations. Such use of the domain name to divert visitors to a competitive app is not a legitimate use, and the type of services advertised may tend to harm Complainant's reputation among those diverted.

 

As to bad faith, Respondent appears to have adopted the <chaiapp.pro>  domain name confusingly similar to the Complainant's senior mark for the purpose of passing itself off as the publisher of a "CHAI" AI app, and then diverting visitors to a differently branded product entirely, which indicates Respondent is perfectly well aware of Complainant and of Respondent's own illicit use of Complainant's mark.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has established all the elements entitling it to relief.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

Complainant has provided evidence that, through extensive use and promotion in commerce since 2022, CHAI has become a distinctive identifier of Complainant's app products and services. Accordingly, the Panel finds that Complainant has shown that it has common law trademark rights in CHAI and that Respondent's <chaiapp.pro> domain name is confusingly similar to Complainant's mark, only differing by the addition of the abbreviation "app", which itself relates to the products and services Complainant provides under its CHAI mark. The inconsequential ".pro" generic top-level domain ("gTLD") may be ignored under this element. See, for example, Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429.

 

Complainant has established this element.

 

Rights or Legitimate Interests

Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in the domain name for purposes of paragraph 4(a)(ii) of the Policy, i.e.

 

(i)         before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

 

(ii)         Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or

 

(iii)         Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.

 

The <chaiapp.pro> domain name was registered on November 22, 2023, several years after Complainant has shown that its CHAI mark had become very widely known. It resolves to a website headed "Engage with Chai APP Your Ultimate NSFW AI Chat Adventure", with links to adult-oriented content.

 

These circumstances, together with Complainant's assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <chaiapp.pro>  domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019). Respondent has made no attempt to do so.

 

The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.

 

Complainant has established this element.

 

Registration and Use in Bad Faith

Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:

(iv)        by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's website or location or of a product or service on its website or location.

The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant's widely-known CHAI mark and its CHAI AI app when Respondent registered the <chaiapp.pro> domain name and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's website, by creating a likelihood of confusion with Complainant's mark as to the source of Respondent's website and of the services promoted on that website. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).

 

Complainant has established this element.

 

DECISION

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 <chaiapp.pro> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

 

Alan L. Limbury, Panelist

Dated: March 22, 2024