Chegg, Inc. v. Pham Dinh Nhut
Claim Number: FA1502001604080
Complainant is Chegg, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Pham Dinh Nhut (“Respondent”), Ho Chi Minh City, Vietnam.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <echegg.com> and <ghegg.com>, registered with APRIL SEA INFORMATION TECHNOLOGY CORPORATION.
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 February 9, 2015; the Forum received payment on February 9, 2015. The Complaint was received in both Vietnamese and English.
On February 12, 2015, APRIL SEA INFORMATION TECHNOLOGY CORPORATION confirmed by e-mail to the Forum that the <echegg.com> and <ghegg.com> domain names are registered with APRIL SEA INFORMATION TECHNOLOGY CORPORATION and that Respondent is the current registrant of the names. APRIL SEA INFORMATION TECHNOLOGY CORPORATION has verified that Respondent is bound by the APRIL SEA INFORMATION TECHNOLOGY CORPORATION 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 24, 2015, the Forum served the Vietnamese language Complaint and all Annexes, including a Vietnamese language Written Notice of the Complaint, setting a deadline of March 16, 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@echegg.com, postmaster@ghegg.com. Also on February 24, 2015, the Vietnamese language 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 March 20, 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 names be transferred from Respondent to Complainant.
Panel Note: Language of the Proceedings
The Registration Agreement is written in Vietnamese, thereby making Vietnamese the language of the proceedings. Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Vietnamese language Complaint and Commencement Notification, and, absent a Response, concludes that the remainder of the proceedings may be conducted in English.
A. Complainant
Complainant owns the CHEGG mark through 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 business, which provides online textbook rental service, homework assistance, scholarships, course review, and internship posting for students in high school and college. The <echegg.com> and <ghegg.com> domain names are confusingly similar to the CHEGG mark. The domain names either add a single character or misspell the CHEGG name by inserting one incorrect character. Each disputed domain name adds the generic top-level domain (“gTLD”) “.com” to the domain name.
Respondent has no rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names, as the WHOIS record for the disputed domain names does not reflect that Respondent is commonly known by the disputed domain names. Further, Complainant has never authorized Respondent to use the CHEGG trademark. Respondent’s lack of rights or legitimate interests in the <echegg.com> and <ghegg.com> domain names is made evident by Respondent’s failure to use the disputed domain names in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Respondent uses the <echegg.com> and <ghegg.com> domain names to redirect Internet users to a website that features generic hyperlinks to third-party websites, some of which compete directly with Complainant’s business. Respondent’s actions constitute typosquatting, which is further evidence of Respondent’s lack of rights and legitimate interests in the disputed domain names.
Respondent has engaged in bad faith registration and use of the <echegg.com> and <ghegg.com> domain names. Respondent’s registration and use of the disputed domain names disrupts Complainant’s business by misleading Complainant’s consumers. Respondent uses the domain names to intentionally attract, for commercial gain, Internet users through a likelihood of confusion with Complainant. Respondent’s typosquatting behavior is evidence of bad faith under Policy ¶ 4(a)(iii). Respondent has engaged in a pattern of bad faith registration of domain names. Respondent has been subject to numerous UDRP proceedings where the panels ordered the disputed domain names to be transferred.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Chegg, Inc., has rights in the CHEGG mark through 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 business, which provides online textbook rental service, homework assistance, scholarships, course review, and internship posting for students in high school and college.
Respondent, Pham Dinh Nhut, registered the <echegg.com> and <ghegg.com> domain names on Feb. 4, 2010 and Sept. 8, 2009, respectively. Respondent uses the <echegg.com> and <ghegg.com> domain names to redirect Internet users to a website that features generic hyperlinks to third-party websites, some of which compete directly with Complainant’s business. Respondent has engaged in typosquatting and in a pattern of bad faith registration and use of domain names.
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. 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).”); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence).
Respondent’s <echegg.com> and <ghegg.com> domain names are confusingly similar to the CHEGG mark under Policy ¶ 4(a)(i). The domain names either add a single character or incorrectly spell the CHEGG name by inserting one incorrect character. Disputed domain names that vary from a registered mark by merely a single character can be confusing 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); see also 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).”). Further, the addition of a gTLD is irrelevant in the analysis of confusing similarity. See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”).
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 <echegg.com> and <ghegg.com> domain names. Complainant has not authorized Respondent to use the CHEGG trademark. The WHOIS information for the disputed domain names lists “Pham Dinh Nhut” as the registrant. Respondent is not commonly known by the disputed domain names. See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information and other information in the record gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Respondent is not using the <echegg.com> and <ghegg.com> domain names in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i), or for a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). Respondent uses the domain names to redirect Internet users to a website that features generic hyperlinks to third-party websites, some of which compete directly with Complainant’s business. Respondent’s competing use through hyperlinks is not a bona fide offering of goods or services, nor 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”).
Respondent’s actions constitute typosquatting and show a lack of rights and legitimate interests in the domain names. 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).”).
Respondent has engaged in bad faith registration and use of the <echegg.com> and <ghegg.com> domain names pursuant to Policy ¶ 4(a)(iii). Respondent’s registration and use of the disputed domain names disrupts Complainant’s business by misleading Complainant’s consumers. Complainant argues that Respondent’s use generates revenue through pay-per-click hyperlinks and that these links divert potential customers away from Complainant to third-party websites, thereby disrupting Complainant’s business. Respondent’s disruptive use of the disputed domain names is evidence of bad faith under Policy ¶ 4(b)(iii). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (“The disputed domain names resolve to websites that list links to competitors of Complainant, evidence that Respondent intends to disrupt Complainant’s business, a further indication of bad faith pursuant to Policy ¶ 4(b)(iii).”).
Respondent uses the domain names to intentionally attract, for commercial gain, Internet users through a likelihood of confusion with Complainant. Respondent presumably receives click-through fees from use of Complainant’s registered mark. Therefore, Respondent has engaged in bad faith 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).”).
Respondent’s typosquatting is evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).
Respondent has been subject to numerous UDRP proceedings where the panels ordered the disputed domain names to be transferred. See e.g. Trivent Financial for Lutherans v. Pham Dinh Nhut, FA 1460791 (Nat Arb. Forum Oct. 10, 2012); The Charlotte-Mecklenburg Hospital Authority, d/b/a Carolinas HealthCare System v. Pham Dinh Nhut, FA 1434556 (Nat. Arb. Forum May 28, 2012); TaxHawk, Inc. v. Pham Dinh Nhut, FA 1431444 (Nat. Arb. Forum May 28, 2012). Therefore, Respondent has engaged in a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii). See TRAVELOCITYCITY.COM LP v. Aziz, FA 1260783 (Nat. Arb. Forum June 16, 2009) (“These previous [UDRP] decisions demonstrate a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii).”).
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 <echegg.com> and <ghegg.com> domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: April 3, 2015
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