DECISION

Snap Inc. v. Jason Fernandez

Claim Number: FA1909001864816

PARTIES

Complainant is Snap Inc. (“Complainant”), represented by Emily A. DeBow of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Jason Fernandez (“Respondent”), Idaho, USA.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <snapchatsexposed.com>, registered with 1&1 IONOS SE.

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.

John J. Upchurch as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on September 30, 2019; the Forum received payment on September 30, 2019.

On October 1, 2019, 1&1 IONOS SE confirmed by e-mail to the Forum that the <snapchatsexposed.com> domain name is registered with 1&1 IONOS SE and that Respondent is the current registrant of the name. 1&1 IONOS SE has verified that Respondent is bound by the 1&1 IONOS SE 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 October 3, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 23, 2019 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@snapchatsexposed.com. Also on October 3, 2019, 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 October 25, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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.

RELIEF SOUGHT

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

PARTIES' CONTENTIONS

A. Complainant

1. Complainant owns and distributes the enormously popular SNAPCHAT camera and messaging application, and storytelling platform. Complainant has rights in the SNAPCHAT mark through its trademark registrations around the world, including with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,375,712, registered July 30, 2013). See Compl. Annex P. Respondent’s <snapchatsexposed.com> domain name is confusingly similar to Complainant’s SNAPCHAT mark as it incorporates the mark in its entirety with an additional “s,” along with the generic or descriptive term “exposed” and a “.com” generic top-level domain (“gTLD”).

2. Respondent has no rights or legitimate interests in the <snapchatsexposed.com> domain name. Respondent is not authorized to use Complainant’s SNAPCHAT mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent’s disputed domain name resolves to a website that contains adult oriented content and photographs.

3. Respondent registered and uses the <snapchatsexposed.com> domain name in bad faith. Respondent uses the disputed domain name to feature adult-oriented content. Finally, Respondent had actual or constructive knowledge of Complainant’s rights in the SNAPCHAT mark prior to registering the disputed domain name.

B. Respondent

1. Respondent failed to submit a Response.

FINDINGS

1. Respondent’s <snapchatsexposed.com> domain name is confusingly similar to Complainant’s SNAPCHAT mark.

2. Respondent does not have any rights or legitimate interests in the <snapchatsexposed.com> domain name.

3. Respondent registered or used the <snapchatsexposed.com> domain name in bad faith.

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. 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 claims rights in the SNAPCHAT mark based upon registration of the mark with the USPTO (e.g., Reg. No. 4,375,712, registered July 30, 2013). See Compl. Annex P. Registration of a mark with the USPTO is sufficient to establish rights in that mark. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark). The Panel therefore holds that Complainant’s registration of the SNAPCHAT mark with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4(a)(i).

Complainant next argues Respondent’s <snapchatsexposed.com> domain name is confusingly similar to the SNAPCHAT mark, as the name incorporates the mark in its entirety with an additional “s,” along with the generic or descriptive term “exposed” and a “.com” gTLD. Such changes are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy); see also PathAdvantage Associated v. VistaPrint Technologies Ltd, FA 1625731 (Forum July 23, 2015) (holding that the <pathadvantages.com> domain name was confusingly similar to the PATHADVANTAGE trademark because the domain name “merely adds the letter ‘s’ to Complainant’s mark”). The Panel therefore determines the <snapchatsexposed.com> domain name is confusingly similar to the SNAPCHAT mark per Policy ¶ 4(a)(i).

Rights or Legitimate Interests

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), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).

Complainant argues that Respondent has no rights or legitimate interests in the <snapchatsexposed.com> domain name, as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the SNAPCHAT mark in any way. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”). The WHOIS information of record identifies the registrant of the at-issue domain name as “Jason Fernandez,” and no information on the record indicates Respondent was authorized to register a domain name incorporating Complainant’s mark. See Amend. Compl. Annex A. The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the <snapchatsexposed.com> domain name.

Complainant further argues Respondent’s lack of rights or legitimate interests in the <snapchatsexposed.com> domain name is demonstrated by its failure to use the name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Complainant contends Respondent uses the disputed domain name to host a website that features adult-oriented content and photographs. Use of a disputed domain name to host pornographic content may not amount to a bona fide offering of goods or services or for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Karen Koehler v. Hiroshi Ishiura/ Lifestyle Design Inc., FA1730673 (Forum June 1, 2017) (holding that “Respondent is not using the disputed domain name for any bona fide offering of goods or services or a legitimate non-commercial fair use because Respondent uses the domain name to host a pornographic website.”); see also Altria Group, Inc. and Altria Group Distribution Company v. xiazihong, FA1732665 (Forum July 7, 2017) (holding that “[u]se of a domain name to display adult-oriented images is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy.”). Complainant provides a screenshot of the disputed domain name’s resolving website which features adult oriented content. See Compl. Annex R. The Panel therefore finds that Respondent does not use the disputed domain name for bona fide offering of goods or services or for a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).

Registration and Use in Bad Faith

Complainant does not make any arguments that would fall under Policy ¶ 4(b). However, these arguments are merely illustrative rather than exclusive to support a finding of bad faith. See Bloomberg Finance L.P. v. Domain Admin - This Domain is For Sale on GoDaddy.com / Trnames Premium Name Services, FA 1714157 (Forum Mar. 8, 2017) (determining that Policy ¶ 4(b) provisions are mere illustrative of bad faith, and that the respondent’s bad faith may be demonstrated by other allegations of bad faith under the totality of the circumstances). The Panel finds Complainant’s Policy ¶ 4(a)(iii) arguments are sufficient to support a finding of bad faith.

Complainant argues Respondent’s bad faith is demonstrated by its use of <snapchatsexposed.com> domain name to feature adult-oriented content. Such a use may be indicative of bad faith under Policy ¶ 4(a)(iii). See H-D U.S.A., LLC v. Nobuyoshi Tanaka / Personal, FA1312001534740 (Forum Jan. 31, 2014) (“Therefore, the Panel concludes that Respondent is acting in bad faith because Respondent is using the <harley-davidsonsales.com> domain name to tarnish Complainant’s HARLEY-DAVIDSON mark, as the Panel also finds that the content displayed on the resolving website constitutes adult-oriented content.”). The Panel recalls that Complainant provides a screenshot of the disputed domain name’s resolving website which features adult oriented content. See Compl. Annex R. Therefore, the Panel finds that Respondent’s use of the disputed domain name to feature adult-oriented content is demonstrative of bad faith per Policy ¶ 4(a)(iii).

Complainant also contends that in light of the fame and notoriety of Complainant's SNAPCHAT mark, it is inconceivable that Respondent could have registered the <snapchatsexposed.com> domain name without actual or constructive knowledge of Complainant's rights in the mark. The Panel here finds that any arguments of bad faith based on constructive notice are irrelevant, however, because UDRP case precedent declines to find bad faith as a result of constructive knowledge. See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."). The Panel agrees with Complainant, however, that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name and find that actual knowledge is adequate evidence of bad faith under Policy ¶ 4(a)(iii). See 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.”). The Panel agrees and finds Respondent had actual knowledge of Complainant’s rights in the mark and thus registered the name in bad faith.

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 <snapchatsexposed.com> domain name be TRANSFERRED from Respondent to Complainant.

John J. Upchurch, Panelist

Dated: November 7, 2019