DECISION

 

Chime Financial, Inc. v. Barton, Ashley

Claim Number: FA2406002103222

 

PARTIES

Complainant is Chime Financial, Inc. ("Complainant"), represented by AJ Schumacher of Kelly IP, LLP, District of Columbia, USA. Respondent is Barton, Ashley ("Respondent"), Kentucky, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <chimehelps.com>, registered with Network Solutions, LLC.

 

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.

 

Debrett G. Lyons as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on June 21, 2024; Forum received payment on June 21, 2024.

 

On June 26, 2024, Network Solutions, LLC confirmed by e-mail to Forum that the <chimehelps.com> domain name is registered with Network Solutions, LLC and that Respondent is the current registrant of the name. Network Solutions, LLC has verified that Respondent is bound by the Network Solutions, 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 July 1, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 22, 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@chimehelps.com. Also on July 1, 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 July 23, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Debrett G. Lyons as Panelist.

 

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.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant asserts trademark rights in CHIME. Complainant holds a national registration for that trademark.  Complainant submits that the domain name is confusingly similar to its trademark.  

 

Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name because it has no trademark rights; is not known by the same name; and the domain name resolves to a website conveying the false impression that the website is Complainant's official website, or one of its official websites, such as a "help" site related to Complainant's solutions-driven business.

 

Complainant alleges that Respondent registered and used the disputed domain name in bad faith having targeted Complainant's trademark and business.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The factual findings pertinent to the decision in this case are that:

1.       Complainant provides financial technologies intended to facilitate banking services;

2.       Complainant undertakes that business by reference to the trademark, CHIME, which is registered with the United States Patent & Trademark Office ("USPTO") as Reg. No. 4,728,805, registered April 28, 2015;

3.       the disputed domain name was registered on March 18, 2024, using a privacy service to shield the name of Respondent; and

4.       the disputed domain name resolves to a website using the trademark and mimicking the trade dress and other indicia of Complainant's official website.

 

DISCUSSION

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(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.  

 

Identical and/or Confusingly Similar

Paragraph 4(a)(i) of the Policy requires a two-fold enquiry—a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.

 

It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights (see, for example, Mothers Against Drunk Driving v. phix, FA 174052 (Forum Sept. 25, 2003)).  Complainant therefore has rights since it provides proof of its registration of the trademark CHIME with the USPTO, a national trademark authority.   

 

The disputed domain name is confusingly similar to Complainant's trademark. For the purposes of comparison, the gTLD, ".com", can be disregarded. So, too, the Panel finds that the addition of the descriptive word, "helps", is of no distinguishing value (see, for example, Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018): "Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.";  Chime Financial, Inc. v. Bikadi, FA 2301002027954 (Forum Feb. 15, 2023) finding <chime-customerservice.net> confusingly similar to the CHIME mark; Chime Financial, Inc. v. Goel, FA 2302002031592 (Forum March 15, 2023) finding <chimehelpguide.com> confusingly similar to CHIME).

 

The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.

 

Rights or Legitimate Interests

Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:

 

(i) before any notice to you of the dispute, your use 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) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights;  or

 

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

 

Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests (see, for example, Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000)).

 

The name of Respondent was shielded by a privacy service. Once revealed in consequence of these proceedings as Respondent, there is nothing which might suggest that it is commonly known by the domain name (see, for example, Tercent Inc. v. Lee Yi, FA 0139720 (Forum Feb. 10, 2003) stating "nothing in [the respondent's] WHOIS information implies that [the respondent] is 'commonly known by' the disputed domain name" as one factor in determining that Policy ¶ 4(c)(ii) does not apply.").

 

There is no evidence that Respondent has any trademark rights.  Complainant states that there is no association between the parties.  Further, the evidence accompanying the Complaint shows that the disputed domain name resolves to a website clearly intended to create the deceptive impression of a site maintained by Complainant. The resolving website (although still including "Lorem ipsum" placeholder text and non-functioning social media icons) copies aspects of the look and feel of Complainant's website and uses not only the CHIME trademark but copies the social media handle "@Chime Helps" coined by Complainant.

 

The use of the domain name is clearly in bad faith and cannot give rise to any rights or legitimate interests (see, for example, Chime Financial, Inc. v. Raditya, D2023-0395 (WIPO March 29, 2023) finding no legitimate rights or interests in the domain when it resolved to a website impersonating Complainant; General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) finding that "use of a domain to sell products and/or services that compete directly with a complainant's business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)."; Alcon, Inc. v. ARanked, FA 1306493 (Forum March 18, 2010): "The Panel finds that capitalizing on the well-known marks of Complainant by attracting internet users to its disputed domain names where Respondent sells competing products of Complainant is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).").

 

A prima facie case has been made. The onus shifts to Respondent and in the absence of a Response, the Panel finds that Respondent has no rights or interests and so finds that Complainant has satisfied the second limb of the Policy.

 

Registration and Use in Bad Faith

Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and used in bad faith.  

 

Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established. 

 

The four specified circumstances are:

 

'(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent's documented out-of-pocket costs directly related to the domain name; or

 

(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or

 

(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

 

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

 

The Panel finds that Respondent's use of the domain name falls under paragraph 4(a)(iv) above. The domain name has already been found confusingly similar to the trademark. The Panel finds, in all likelihood, the resolving website exists for commercial gain in one form or another, the exact mode being immaterial.  In terms of the Policy, the Panel finds that Respondent intentionally attempted to attract, for commercial gain, internet users to its website by creating a likelihood of confusion with Complainant's trademark as to the source, sponsorship, affiliation, or endorsement of that website (see, for example, Am. Univ. v. Cook, FA 208629 (Forum Dec. 22, 2003): "Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.").

 

The Panel finds that Complainant has satisfied the third and final element of the Policy.

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <chimehelps.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Debrett G. Lyons, Panelist

Dated:  July 24, 2024