Snap Inc. v. juli awn
Claim Number: FA2003001888235
Complainant is Snap Inc. (“Complainant”), represented by Caroline Barbee of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is juli awn (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <premiumsnapchatsexting.com> (the “Disputed Domain Name”), registered with NameCheap, Inc..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Lynda M. Braun as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 13, 2020; the Forum received payment on March 13, 2020.
On March 14, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <premiumsnapchatsexting.com> Disputed Domain Name is registered with NameCheap, Inc. and that Respondent is the current registrant of the Disputed Domain 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 March 19, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 8, 2020 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@premiumsnapchatsexting.com. Also on March 19, 2020, 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 April 10, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Lynda M. Braun 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 Disputed Domain Name be transferred from Respondent to Complainant.
A. Complainant
Complainant, Snap Inc., owns and distributes a camera and messaging application. Complainant has rights in the SNAPCHAT trademark based upon the registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,375,712, registered Dec. 12, 2012) and the dozens of trademarks Complainant owns in numerous jurisdictions worldwide (hereinafter, the “SNAPCHAT Mark”).
Respondent’s
<premiumsnapchatsexting.com> Disputed Domain Name is confusingly
similar to Complainant’s SNAPCHAT Mark because it incorporates the entirety of
Complainant’s SNAPCHAT Mark, simply adding two generic/descriptive terms, the
term “premium” that precedes the SNAPCHAT Mark, the term “sexting” that follows
the SNAPCHAT Mark, and the generic top level domain (“gTLD”) “.com”. Complainant
uses the term “premium” with its
SNAPCHAT
Mark in reference to its premium made-for-mobile entertainment content offered exclusively
to users of the Snapchat App and available on the app’s Discover page. Since
2015, Complainant has been a leader in offering users a platform to create and
view premium content on the Snapchat App’s Discover page. Today, this premium
content includes Snap Originals (original TV shows), Publisher Stories (mobile
magazines) and Our Stories (news, live events, and trends curated from publicly
submitted Snaps).
Respondent does not have rights or legitimate interests in the <premiumsnapchatsexting.com> Disputed Domain Name. Respondent has no relationship with Complainant and is not commonly known by the Disputed Domain Name. Further, Respondent doesn’t use the Disputed Domain Name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the Disputed Domain Name to display adult-oriented material and promote activity that violates Complainant’s terms of service (“Terms of Service”). The sale and/or purchase of access to a Snapchat account which the Respondent is doing through the Disputed Domain Name and the resolving website is a violation of the Snapchat App Terms of Service, as is using the Snapchat App to share pornography.
Respondent registered and is using the <premiumsnapchatsexting.com> Disputed Domain Name in bad faith. Respondent attempts to attract Internet users to its website for commercial gain. Moreover, Respondent uses the Disputed Domain Name to facilitate adult-oriented activity that violates Complainant’s terms of service. By using the Disputed Domain Name to attract Internet traffic seeking information on Complainant’s services to a site displaying adult content, Respondent disrupts Complainant’s business and tarnishes its goodwill and reputation, also evidence of bad faith. Finally, Respondent had actual knowledge of Complainant’s rights in the SNAPCHAT Mark as demonstrated by Respondent’s repeated reference to Complainant on its website.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights in the SNAPCHAT Mark. The Disputed Domain Name is confusingly similar to Complainant’s SNAPCHAT Mark. Further, Complainant has established that Respondent lacks rights or legitimate interests in the use of the Disputed Domain Name and that Respondent registered and is using the Disputed Domain Name in bad faith.
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 Disputed 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 Disputed Domain Name; and
(3) the Disputed 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 Panel concludes that Complainant has shown to have rights in the SNAPCHAT Mark based upon registration of the SNAPCHAT Mark with the USPTO (as well as with numerous trademark offices worldwide), as referenced above. Registration of a mark with the USPTO confers upon a complainant trademark rights for purposes of the Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
The Panel also concludes that the Disputed Domain Name is confusingly similar to the SNAPCHAT Mark under the Policy ¶ 4(a)(i). The Disputed Domain Name incorporates Complainant’s SNAPCHAT Mark in its entirety, with the addition of the descriptive terms “premium” and “sexting” followed by the gTLD “.com”. The inclusion of the generic or descriptive terms “premium” and “sexting” does not distinguish the Disputed Domain Name from the SNAPCHAT Mark. UDRP panels have consistently held that the addition of generic or descriptive terms – including “premium” – is not sufficient to distinguish a disputed domain name from a complainant’s mark. See Snap Inc. v. Kester Pettitt, FA1909001864819,
(Forum Oct. 11, 2019 ) (finding the addition of the generic word “premium” to the SNAPCHAT Mark in the domain <premiumsnapchat.com> did not avoid a finding of confusing similarity); Google Inc. v. Chris Gillespie, FA1203001434643 (Forum May 10, 2012) (finding the addition of the term “sexting” to the domain name <googlesexting.com> was insufficient to distinguish it from complainant’s Google trademark).
Finally, the inclusion of the “gTLD “.com” in the Disputed Domain Name also does not change the conclusion that the Disputed Domain Name is confusingly similar to the SNAPCHAT Mark. See, e.g., Snap Inc. v. Nestor Hernandez, F1709001749325 (Forum Oct. 25, 2017) (“gTLDs are insufficient to defeat a test of confusingly similar”).
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been established by Complainant.
Complainant alleges that Respondent holds no rights or legitimate interests in the Disputed Domain Name. Under the Policy, Complainant is required to make out a prima facie case that Respondent lacks rights or legitimate interests in the Disputed Domain Name. Once such a prima facie case is made, Respondent carries the burden of demonstrating rights or legitimate interests in the Disputed Domain Name. See 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”).
As Respondent did not respond to the Complaint, Respondent cannot have carried its burden to come forward with evidence of its rights or legitimate interests in the Disputed Domain Name. The Panel notes that, given the facts here, Respondent would have been hard-pressed to furnish availing arguments, had it chosen to respond:
To wit, Respondent is not commonly known by the Disputed Domain Name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the SNAPCHAT Mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant.
Respondent uses the Disputed Domain Name to resolve to a website that displays adult entertainment material. Using a confusingly similar domain name in connection with adult-oriented material generally does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Altria Group, Inc. and Altria Group Distribution Company v. xiazihong, FA 1732665 (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.”). As such, the Panel finds that Respondent fails to use the Disputed Domain Name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii).
Furthermore, Respondent is using the Disputed Domain Name to drive traffic to Respondent’s website for commercial gain. Specifically, Respondent is using the Disputed Domain Name to promote a membership platform where users can pay a fee for access to the private Snapchat accounts of adult models. Use of a domain name that is confusingly similar to another’s trademark to divert Internet traffic to a commercial website is not a legitimate noncommercial or fair use under the Policy. See, e.g. Snap Inc. v. Jason Fernandez, FA1909001864816, (Forum Nov. 7, 2019) (respondent does not use the disputed domain name for a bona fide offering of goods or services or for a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii) as it is using the disputed domain name’s resolving website to feature adult-oriented content).
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been established by Complainant.
The Panel concludes that Respondent registered and is using the Disputed Domain Name in bad faith.
First, the use of a domain name to intentionally attempt to attract Internet users to a respondent’s website or online location by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation or endorsement of the registrant’s website or online location demonstrates registration and use in bad faith. Bad faith under Policy ¶ 4(b)(iv) can be found where a respondent uses a confusingly similar domain name to falsely indicate an association with a complainant. See AOL LLC v. iTech Ent, LLC, FA 726227 (Forum July 21, 2006).
Second, Respondent is attempting to attract, for commercial gain, Internet users to its adult website by creating confusion as to the source, sponsorship, affiliation, or endorsement of the resolving website and/or the products or services at the resolving website. Using a confusingly similar domain name to trade upon the goodwill of a complainant’s mark for commercial gain can evince bad faith under Policy ¶ 4(b)(iv). See Menard, Inc. v. Domain Admin / Whois Privacy Corp., FA 1785761 (Forum June 13, 2018) (“A respondent’s appropriation of a complainant’s mark in a confusingly similar domain name to divert potential consumers to its own web site is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
Bad faith can also be found where the resolving webpage displays adult-oriented material. 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.”). Accordingly, the Panel finds that Respondent attempted to commercially benefit from the SNAPCHAT Mark in bad faith under Policy ¶ 4(b)(iv).
Moreover, Respondent’s use of the Disputed Domain Name to promote and facilitate activity that violates Complainant’s Terms of Service, as referenced above, and which prohibit both purchase and/or sale of access to Snapchat accounts as well as using the Snapchat App to distribute pornography, is further evidence of bad faith. See, e.g., Snap Inc. v. Nabil EL, FA2002001882878 (Forum Feb. 22, 2019) (finding that respondent’s use of the domain <snapchattpremium.com> to resolve to a website for an adult model to monetize her Snapchat account by connecting her with subscribers who paid a monthly fee to be added as a follower to the adult model’s private Snapchat account, in violation of the Snapchat terms of service, supported a finding of bad faith).
Lastly, the Panel finds that the Respondent knew or should have known of Complainant’s rights in its SNAPCHAT Mark when registering the Disputed Domain Name. As noted above, the Complainant’s SNAPCHAT Mark is widely known. Indeed, a number of UDRP panels have found that the SNAPCHAT Mark is famous. See, e.g., Snap Inc. v. Srdjan Markovic, FA191200187369 (Forum Dec. 31, 2019) (finding the SNAP mark famous); Snap Inc. v. Daisy Ducharme / baby & belly photography, FA1911001872261 (Forum Dec. 28, 2019) (finding that the SNAPCHAT and SNAP marks are famous).
Respondent registered the Disputed Domain Name in February 2019 years after the SNAPCHAT Mark was first used in commerce in the United States, where the Respondent resides. It therefore strains credulity to believe that Respondent had not known of the Complainant or its SNAPCHAT Mark when registering the Disputed Domain Name, especially since the Disputed Domain Name consists of the SNAPCHAT Mark with the mere addition of descriptive terms. Thus, as here, prior knowledge of a complainant’s trademarks before registering a Disputed Domain Name is sufficient to find bad faith under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (finding actual knowledge due to the domain name chosen and the use made of it). The Panel concludes that Respondent had actual knowledge of Complainant’s rights in the SNAPCHAT Mark prior to registering the Disputed Domain Name, constituting bad faith under the Policy ¶ 4(a)(iii).
Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been established by 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 <premiumsnapchatsexting.com> Disputed Domain Name be TRANSFERRED from Respondent to Complainant.
Lynda M. Braun, Panelist
Dated: April 12, 2020
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