Chime Financial, Inc. v. bharu goel
Claim Number: FA2302002031592
Complainant is Chime Financial, Inc. (“Complainant”), represented by AJ Schumacher of Kelly IP, LLP, District of Columbia. Respondent is bharu goel (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <chimehelpguide.com>, registered with NameCheap, Inc..
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 Forum electronically on February 13, 2023; Forum received payment on February 13, 2023.
On February 13, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <chimehelpguide.com> 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 16, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 8, 2023 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@chimehelpguide.com. Also on February 16, 2023, 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. Respondent did however sent emails to the Forum, see below.
On March 15, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it is a financial technology company founded on the simple idea that basic banking services should be helpful, easy, and free for everyday people. Since its founding in 2012, Complainant has been partnering with regional banks to design member-first financial solutions that provide better and lower-cost options for everyday people, such as providing early access to paychecks, checking and savings accounts with no monthly fees, fee-free overdrafts up to $200, and secured credit cards that enable users to safely build credit. Today, Complainant has many millions of members who utilize its various financial solutions every day, with a valuation for the business that exceeds $20 billion. Complainant asserts rights in the CHIME mark based upon its registration in the United States in 2015.
Complainant alleges that the disputed domain name is identical or confusingly similar to its CHIME mark because it incorporates the mark in its entirety and merely adds the generic/descriptive term “help guide” as well as the generic top level domain (“gTLD”) “.com”.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name since Respondent is not licensed or authorized to use Complainant’s CHIME mark and is not commonly known by the disputed domain name. Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent is passing itself off as Complainant. Respondent is conducting a phishing scheme. The resolving website provides information for services that compete with those of Complainant. Respondent’s disclaimer is insufficient to legitimize its use of the disputed domain name.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent is creating a likelihood of confusion as to the source of the resolving website. Respondent is conducting a phishing scheme. The resolving website provides information on services that compete with those of Complainant. Respondent’s disclaimer is insufficient to legitimize its use of the disputed domain name. Respondent provided false WHOIS contact information. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the CHIME mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. In its emails to the Forum, Respondent states, in pertinent part: “What is this complaint and for what? This is a simple blog website providing information nothing more. There are 100’s of websites over internet providing information about any brand, and I believe there is no false act doing the same thing. What is the problem?” And: “I am just a simple blogger, there are 100’s of websites running online, please explain me what you want me to do and what is the problem , if something is wrong I am here to solve it. The website is just an education blog website which is written there clearly.”
Respondent also states: “I understand that you have expressed an interest in obtaining ownership of the domain name, though there are so many domains running on the internet with my same knowledge intent, but here I am willing to negotiate a settlement to resolve the matter. In light of the value and investment I have made in the domain name, I believe it is reasonable to request fair compensation for its transfer. I am willing to consider a sale of the domain name for a mutually agreeable price, which takes into account the value of the domain name, its potential for future use and any associated costs incurred.”
Complainant has rights in the mark CHIME dating back to 2015 and uses it to provide online banking services.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website provides information for Complainant’s services and for services that compete with those of Complainant. The resolving website displays a disclaimer stating: “We do not provide any service and are not Chime Bank representatives. This is just an educational blog to help people read and understand its service. Contact chime bank here for your queries: https://help.chime.com/hc/en-us”
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 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”).
The disputed domain name incorporates Complainant’s CHIME mark in its entirety and merely adds the generic/descriptive term “help guide” as well as the generic top level domain (“gTLD”) “.com”. The addition of descriptive wording and a gTLD does not adequately distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See 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.”); see also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)). The Panel therefore finds that the <chimehelpguide.com> domain name is confusingly similar to Complainant’s CHIME mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Here, the WHOIS information for the disputed domain name lists the registrant as “Bharu Goel”. Accordingly the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant alleges that the resolving website is confusingly similar to its own website. On the basis of the evidence before it, the Panel disagrees: the two sites are not particularly similar. Thus the Panel finds that Complainant has failed to satisfy its burden of proving that Respondent is attempting to pass off as, or to impersonate, Complainant.
Further, the resolving website displays, rather prominently, a disclaimer stating that it is not affiliated with Complainant. This further reinforces the finding that the resolving website does not attempt to pass off as, or to impersonate, Complainant.
Complainant alleges that the resolving website is used for phishing. The Panel notes that the resolving website does indeed include a page on which users can enter their personal information. However, since, as noted above, the resolving website does not pass off as, or impersonate, Complainant, the Panel finds that Complainant has failed to satisfy its burden of proving the allegation of phishing.
The resolving website offers information for Complainant’s services, but also prominently displays information for services offered by Complainant’s competitors. By analogy with the “Oki Data test” (see 2.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”)), this is neither a a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶4(c)(iii). Indeed, the display of information regarding services offered by Complainant’s competitors violates the second factor of the OKI Data test, namely that the resolving website offer only Complainant’s products or services. As stated in Sub-Zero, Inc. v. Daniel Ellis / Joel Gonzalez / SEO Repair Shop / Elite Sub-Zero Repair, FA2210002014882 (Forum, Nov. 15, 2022), that factor must be satisfied in order to avoid possible “bait and switch”.
Respondent states that it only provides information, but it fails to explain why it uses Complainant’s trademark to provide information for services that compete with those of Complainant. Internet users who seek information for Complainant’s services might visit the resolving website and, finding information for competing services, might decide to use those competing services instead of Complainant’s services.
The Panel finds, on the preponderance of the evidence before it, that the resolving website’s use of Complainant’s mark to offer information for competing services is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (“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).”); see also Coachella Music Festival, LLC v. josh greenly / All Access Tickets, FA1507001629217 (Forum August 10, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name as required under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), where the respondent was using the disputed domain name to host a web page that featured links to services that competed with those of the complainant). Therefore, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
Further, Respondent has offered to sell the disputed domain name to Complainant for a price “which takes into account the value of the domain name, its potential for future use and any associated costs incurred”, that is, for a price in excess of out-of-pocket costs. This does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). See Reese v. Morgan, FA 917029 (Forum Apr. 5, 2007) (finding that the respondent’s willingness to sell a contested domain name for more than its out-of-pocket costs provided additional evidence that Respondent had no rights or legitimate interests in the contested domain name). On this ground also, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
For all the above reasons, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
As already noted, the Panel finds that Complainant has failed to prove its allegation that the resolving website attempts to pass off as, or to impersonate, Complainant. Complainant has also failed to provide that the resolving website is used for phishing.
Complainant alleges that the WHOIS information is false because the physical address given in the WHOIS does not correspond to the physical address given on the resolving website. But there is no obligation that the two physical addresses must be the same. Thus the Panel finds that Complainant has failed to satisfy its burden of proving the allegation that the WHOIS information is false.
The Panel notes the disclaimer displayed on the resolving website. As stated in 3.7 of the cited WIPO Jurisprudential Overview 3.0, the mere existence of a disclaimer cannot cure bad faith, if other factors evince bad faith – which is the cases here, see below.
As already noted, the resolving website provides information for services that compete with those of Complainant. By analogy with the Oki Data test, the panel finds that this evinces bad faith registration and use. See Univ. of Texas Sys. v. Smith, FA 1195696 (Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)); see also United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (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).”). Thus the Panel finds bad faith registration and use pursuant to Policy ¶ 4(b)(iii).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website references Complainant’s services and explicitly refers to Complainant and its website. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Finally, also as already noted, Respondent offered to sell the disputed domain name for an amount in excess of out of pocket costs. This evinces bad faith registration and use pursuant to Policy ¶ 4(b)(i). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007) (concluding that the respondent registered and was using the <gwbakeries.mobi> domain name in bad faith according to Policy ¶ 4(b)(i) where it offered it for sale for far more than its estimated out-of-pocket costs it incurred in initially registering the disputed domain name). Thus the Panel finds that Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(i).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <chimehelpguide.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: March 15, 2023
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