Snap Inc. v. Host Master / 1337 Services LLC
Claim Number: FA2006001899014
Complainant is Snap Inc. (“Complainant”), represented by Emily A. DeBow of Kilpatrick Townsend & Stockton LLP, California, United States. Respondent is Host Master / 1337 Services LLC (“Respondent”), Saint Kitts and Nevis.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <snapsexfinder.com>, registered with Tucows Domains 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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 4, 2020; the Forum received payment on June 4, 2020.
On June 5, 2020, Tucows Domains Inc. confirmed by e-mail to the Forum that the <snapsexfinder.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 June 8, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 29, 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@snapsexfinder.com. Also on June 8, 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 July 2, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <snapsexfinder.com> domain name is confusingly similar to Complainant’s SNAPCHAT mark.
2. Respondent does not have any rights or legitimate interests in the <snapsexfinder.com> domain name.
3. Respondent registered and uses the <snapsexfinder.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant, Snap Inc., owns and distributes the well-known SNAPCHAT camera and messaging application. Complainant holds a registration for the SNAP mark, and various other SNAP marks with multiple trademark agencies, including the United States Patent and Trademark Office (“USPTO”) (see Reg. No. 4,345,533 for SNAP, registered on June 4, 2013, and Reg. No. 4,933,187 for SNAPCHAT, registered on April 5, 2016).
Respondent registered the <snapsexfinder.com> domain name was registered on October 9, 2017, and uses it name to host adult-oriented materials and divert Internet users to a commercial website.
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 Panel finds that Complainant has rights in the SNAP marks through its registration of the marks with multiple trademark agencies. See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA 1625332 (Forum July 17, 2015) (finding, “Registration of a mark with a governmental authority (or, in this case, multiple governmental authorities) is sufficient to establish rights in the mark for purposes of Policy ¶4(a)(i)”).
Respondent’s <snapsexfinder.com> domain name uses the dominant part of the SNAP marks and adds the terms “sex” and “finder” and the “.com” gTLD. The addition of a generic or descriptive term and a gTLD is not sufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).). Therefore, the Panel finds that Respondent’s <snapsexfinder.com> domain name is confusingly similar to Complainant’s SNAP marks.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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 does not have rights or legitimate interests in the <snapsexfinder.com> domain name, as Respondent is not commonly known by the disputed domain name and has no relationship with Complainant and its marks. The WHOIS information for the disputed domain name lists the registrant as “1337 SERVICES LLC” and nothing in the record indicates that Respondent is licensed to use Complainant’s mark or is known by the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). 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); see also Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
Complainant claims that Respondent fails to use the <snapsexfinder.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses the domain name to host adult-oriented materials and divert internet users to a commercial website. The use of a domain name to display adult-oriented material is not 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). 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.”). The use of a disputed domain name to redirect Internet users to a commercial website is also not 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). See Hewlett-Packard Co. v. Collazo, FA 144628 (Forum Mar. 5, 2003) (holding that the respondent’s use of the <hpcanada.com> domain name to post links to commercial websites and subject Internet users to pop-up advertisements was not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain name). Complainant provides screenshots of the website at <snapsexfinder.com> that feature pay-per-click advertising and displays pornographic images. Accordingly, the Panel finds that Respondent’s use of the disputed domain name is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶¶ 4(c)(i) and (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the domain name in bad faith by using it to divert Internet users to a commercial website. The use of a domain name to attract Internet users to a commercial website for the Respondent’s financial gain is bad faith under Policy ¶ 4(b)(iv). See CMG Worldwide, Inc. v. Lombardi, FA 95966 (Forum Jan. 12, 2001) (finding that the respondent’s use of the complainant’s VINCE LOMBARDI mark to divert Internet users to its commercial website located at the <vincelombardi.com> domain name constituted bad faith use and registration of the disputed domain name). The Panel notes that Respondent’s website includes various advertising and finds that this is evidence of bad faith under Policy ¶ 4(b)(iv).
The Panel finds that Respondent uses the <snapsexfinder.com> domain name to host adult oriented material, which is evidence of bad faith under Policy ¶ 4(a)(iii). See Twitter, Inc. v. Kiribati Media / Kiribati 200 Media Limited, FA1502001603444 (Forum Mar. 19, 2015) (“Respondent’s use of the disputed domain name to feature adult-oriented advertisements is further evidence of bad faith under Policy ¶ 4(a)(iii).”).
Complainant argues that Respondent must have had actual knowledge of Complainant’s rights in the SNAP marks since Respondent repeatedly referenced Complainant’s app on Respondent’s webpage. The Panel agrees, noting the fame of the SNAP marks, and finds further bad faith under Policy ¶ 4(a)(iii). See WordPress Foundation v. mich delorme / mich d dots tlds, FA1410001584295 (Forum, Nov. 25, 2014) (“Because Respondent here relies on the WORDPRESS mark in the disputed domain name and also makes use of Complainant’s services at the resolving page, the Panel finds that Respondent had actual knowledge of Complainant’s mark, and that such knowledge evidences Policy ¶ 4(a)(iii) bad faith.”); see also Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration).
The Panel finds that Complainant has satisfied 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 <snapsexfinder.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: July 3, 2020
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