Snap Inc. v. tokunbo ramos / Toks
Claim Number: FA2006001899017
Complainant is Snap Inc. (“Complainant”), represented by Emily A. DeBow of Kilpatrick Townsend & Stockton LLP, California, United States. Respondent is tokunbo ramos / Toks (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <freesnapchatpremiumgirls.site> (‘the 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.
Dawn Osborne 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, NameCheap, Inc. confirmed by e-mail to the Forum that the <freesnapchatpremiumgirls.site> 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 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@freesnapchatpremiumgirls.site. 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 Dawn Osborne 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
The Complainant is the owner of the SNAPCHAT mark registered, inter alia in the USA filed December 12, 2012, registered 30 July 2013, with first use evidenced from 2011. It also owns <snapchat.com>. The mark is well-known.
The Domain Name, registered in 2020, was registered after the SNAPCHAT mark had become well known and has been used to link to adult websites.
The Domain Name includes the entirety of the Complainant’s SNAPCHAT mark and are thus likely to confuse consumers as to a connection with the Complainant. The addition of the generic words "free" and "premium girls" in the Domain Name and the gTLD ".site" is not sufficient to distinguish them from the Complainant’s trade mark to which they are confusingly similar.
There is no relationship between the Respondent and the Complainant who is not commonly known by the Domain Names. Use of a domain name that is confusingly similar to another’s trade mark to divert traffic to a commercial web site in particular pornography is not a bona fide or legitimate fair use under the Policy.
Respondent was aware of the Complainant’s mark when it registered the Domain Name.
Respondent’s use of the Domain Name to divert Internet traffic to adult sites for Respondent’s financial gain also constitutes bad faith under the Policy.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the SNAPCHAT mark registered, inter alia, in the USA filed December 12, 2012, registered 30 July 2013, with first use evidenced from 2011. It also owns <snapchat.com>. The mark is well-known.
The Domain Name registered in 2020 has been linked to adult sites of a sexual nature.
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
The Domain Name in this Complaint combines the Complainant’s SNAPCHAT mark (registered in the USA for services relating to software for distribution of information via a global communication network and with first use in commerce recorded as 2011), the generic terms "free", "premium" and "girls" and the gTLD ".site".
The addition of the generic words "free", "premium" and "girls" does not serve to distinguish the Domain Name from the Complainant’s SNAPCHAT mark. See Abbott Laboratories v Miles White, FA 1646590 (Forum Dec 10, 2015) (holding that the addition of generic terms does not adequately distinguish a disputed domain name from complainant’s mark under Policy ¶ 4(a)(i)).
The gTLD ".site" does not serve to distinguish the Domain Name from the SNAPCHAT mark, which is the distinctive component of the Domain Name. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purposes of the Policy.
Rights or Legitimate Interests
The Respondent has not provided any evidence that it is commonly known by the Domain Name. The Complainant has not authorised the Respondent to use its SNAPCHAT mark. The use of the Domain Name is commercial and so cannot be legitimate non commercial fair use.
The use of a domain name containing a well-known mark to resolve to adult-orientated material cannot constitute a bona fide use. See Altria Group, Inc. and Altria Group Distribution Company v xiazihong, FA 1732665 (Forum July 7, 2017).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Use of a domain name containing a trade mark in relation to a web page hosting adult material is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See Molson Canada 2005 v JEAN LUCAS/DOMCHARME GROUP, FA 1412001596702 (Forum Feb 10, 2015). There is, therefore, no need to consider any additional grounds of bad faith.
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy.
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 <freesnapchatpremiumgirls.site> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: July 2, 2020
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