Chegg Inc. v. Robert Stewart / HUSH IP LLC
Claim Number: FA1606001678481
Complainant is Chegg Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Robert Stewart / HUSH IP LLC (“Respondent”), New Zealand.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <chaegg.com>, registered with Key-Systems GmbH.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 7, 2016; the Forum received payment on June 7, 2016.
On June 9, 2016, Key-Systems GmbH confirmed by e-mail to the Forum that the <chaegg.com> domain name is registered with Key-Systems GmbH and that Respondent is the current registrant of the name. Key-Systems GmbH has verified that Respondent is bound by the Key-Systems GmbH 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 June 9, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 29, 2016 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@chaegg.com. Also on June 9, 2016, 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 July 6, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is an online textbook rental service (both in physical and digital formats), providing homework assistance, scholarships, course review and internship posting for students in high school and college. The company was founded in 2001. With over 7 million active members, Complainant currently reaches over 30% of all US college students and 40% of high school seniors. Complainant owns the CHEGG mark through its registration in the USA in 2007. It has spent millions of dollars in advertisement and promotion of its mark through print media, television and on the Internet through its website located at <chegg.com> among other company owned websites.
According to Complainant, the disputed domain name is confusingly similar to Complainant’s CHEGG mark. The disputed domain name capitalizes on a common typographical error misspelling the CHEGG mark by inserting an “a” and adding a generic top-level domain (“gTLD”) “.com” to the disputed domain name. Complainant cites UDRP precedents to support its position.
Complainant alleges that 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. Further, Respondent is not sponsored by Complainant in any way. Additionally, Respondent lacks rights or legitimate interests in the disputed 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 website. Additionally, Respondent has engaged in typosquatting, which is further evidence that Respondent lacks rights and legitimate interests in respect of the disputed domain name. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent has engaged in bad faith registration and use of the disputed domain name. Respondent has listed the disputed domain name for sale, which constitutes evidence of bad faith. Respondent’s use of the disputed domain names disrupts Complainant’s business by diverting Internet customers seeking Complainant’s website. Further, Respondent intentionally attracts, for commercial gain, Internet users to its websites 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). Respondent registered the disputed domain name with actual knowledge of Complainants rights in the CHEGG mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns rights in the mark CHEGG with rights dating back to 2007.
The disputed domain name was registered in 2010.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain name to resolve to a web site that contains commercial links to products and services which compete with those of 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(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 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 (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 disputed domain name intentionally misspells the CHEGG mark by inserting an “a” and adding a gTLD “.com” to the disputed domain name. Previous panels have found confusing similarity where disputed domain names attempts to capitalize on a common typographical error to attract Internauts to its website. See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(i).”); see also Leland Turner v. joseph derer, FA 1618086 (Forum June 25, 2015) (“The addition of the .com gTLD does not serve to distinguish the Domain Name from the Complainant's LELAND TURNER mark and the Panellist finds that this domain name is identical to a mark in which the Complainant has rights for the purpose of the Policy.”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s CHEGG mark pursuant to Policy ¶ 4(a)(i).
Respondent is not sponsored by Complainant in any way, nor did Complainant license or authorize him to use its mark. Further, 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. The Panel notes that the WHOIS information for the disputed domain name lists “Robert Stewart / HUSH IP LLC” as the registrant of record. These contentions are sufficient to establish Respondent’s lack of rights to the disputed domain name under Policy ¶ 4(c)(ii). See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1502001605239 (Forum Mar. 22, 2015) (“WHOIS information for the at-issue domain name lists ‘Domain Admin / Whois Privacy Corp.’ as the domain name’s registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the <google-status.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii).”).
Additionally, Respondent lacks rights or legitimate interests in the disputed 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. The disputed domain name features competing hyperlinks on its resolving website, diverting Internet users who are seeking Complainant’s website to Respondent’s website. Some of the featured hyperlinks include, “Rent Textbooks,” “Used College Textbook,” and “Sell Books.” Panels have found that 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 CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1411001589962 (Forum Jan. 1, 2015) (“The Panel finds that Respondent’s use of the <cheepcaribbean.com> name to promote links in competition with Complainant’s travel agency services does not fall within Policy ¶ 4(c)(i)’s bona fide offering of goods or services, nor does it amount to a legitimate noncommercial or fair use described in Policy ¶ 4(c)(iii).”). The Panel concludes that Respondent’s actions here are not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Respondent has listed the disputed domain name for sale, which constitutes evidence of bad faith. Panels have found that respondents demonstrate bad faith when they offer to sell domain names that are identical or confusingly similar to trademarks without consent. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”). Therefore, this Panel finds bad faith registration and use under Policy ¶ 4(b)(i).
Further, Respondent’s use of the disputed domain name disrupts Complainant’s business by diverting Internet customers seeking Complainant’s website. Respondent uses pay-per-click hyperlinks on the resolving websites, which redirect users to various third-party websites some of which compete with Complainant’s business. 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 Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”). The Panel concludes that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iii).
Further, Respondent intentionally attracts, for commercial gain, Internet users to its websites by creating a likelihood of confusion with Complainant’s mark. Respondent presumably receives referral fees through the use of its disputed domain names, and registered the disputed domain name to attract and mislead consumers for its own profit. Prior panels have found that hyperlinks are typically associated with “click-through” fees, and a respondent’s use is evidence of 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). The Panel finds that Respondent has engaged in bad faith use under Policy ¶ 4(b)(iv).
Finally, Respondent has engaged in typosquatting, which is additional evidence of bad faith under Policy ¶ 4(a)(iii). Users would merely need to mistype the CHEGG mark by mistyping a single character to be mistakenly directed to Respondent’s website rather than Complainant’s website. Past panels have found that respondents who take advantage of common typing errors engage in bad faith use and registration under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (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)). This Panel accordingly finds that Respondent’s typosquatting conduct is additional evidence of bad faith pursuant to 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 <chaegg.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 7, 2016
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