Snap Inc. v. Domain Admin / Whois Privacy Corp.
Claim Number: FA2110001969763
Complainant is Snap Inc. ("Complainant"), represented by Emily A. DeBow of Kilpatrick, Townsend & Stockton LLP, California, USA. Respondent is Domain Admin / Whois Privacy Corp. ("Respondent"), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <telechargersnapchat.com>, registered with TLD Registrar Solutions Ltd.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 19, 2021; the Forum received payment on October 19, 2021.
On October 28, 2021, TLD Registrar Solutions Ltd. confirmed by email to the Forum that the <telechargersnapchat.com> domain name is registered with TLD Registrar Solutions Ltd. and that Respondent is the current registrant of the name. TLD Registrar Solutions Ltd. has verified that Respondent is bound by the TLD Registrar Solutions Ltd. 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 28, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 17, 2021 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@telechargersnapchat.com. Also on October 28, 2021, the Written Notice of the Complaint, notifying Respondent of the email 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 November 19, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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
Complainant owns and distributes a popular camera and messaging application and storytelling platform. The app was launched in 2011; it had 70 million daily active users by the end of 2014, and 293 million by the second quarter of 2021. Complainant uses SNAPCHAT and related marks in connection with the app and platform, and asserts that the SNAPCHAT mark has become famous (citing several decisions under the Policy that have so found). Complainant owns numerous trademark registrations for the SNAPCHAT mark in standard character form in the United States, the European Union, and other jurisdictions worldwide. Complainant also owns trademark registrations for its ghost logo and yellow icon.
Respondent registered the disputed domain name <telechargersnapchat.com> in August 2015. Complainant states that the term "telecharger" is French for "download." The domain name is being used for a French-language website called "Télécharger Snapchat" that prominently displays Complainant's SNAPCHAT mark and associated design marks, and that contains articles about Complainant's app and numerous third-party advertisements, along with "continue reading" links that redirect users to additional third-party advertisements. The advertisements include large green "Start buttons," and Complainant contends that they appear to be links to download unauthorized Snapchat software but actually redirect users to unrelated third-party websites. Complainant states that Respondent is not commonly known by the disputed domain name, that there is no relationship between the parties, and that Respondent has no right to own or use any domain name incorporating Complainant's SNAPCHAT mark.
Complainant contends on the above grounds that the disputed domain name <telechargersnapchat.com> is confusingly similar to its SNAPCHAT mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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 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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <telechargersnapchat.com> incorporates Complainant's registered SNAPCHAT trademark, adding the generic term "telecharger" (meaning "download") and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Snap Inc. v. A Firman Zakki Rosyadi, FA 1812517 (Forum Nov. 22, 2018) (finding <downloadsnapchatforpc.com> confusingly similar to SNAPCHAT); Facebook Inc., Instagram, LLC, WhatsApp Inc., Facebook Technologies, LLC v. Perfect Privacy, LLC / Milen Radumilo, Hush Whois Protection Ltd., Contact Privacy Inc., Host Master, Transure Enterprise Ltd, D2019-0510 (WIPO July 25, 2019) (finding <telechargerwhatsapp.com> confusingly similar to WHATSAPP); Google LLC v. Marcelo Gonzalez / Lionel San Martin, FA 1831623 (Forum May 9, 2019) (finding <telechargerplaystore.com> confusingly similar to PLAY STORE). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization and it is being used for a misleading website that repeatedly displays the mark and associated logos, apparently for the purpose of generating revenue from pay-per-click links and advertisements, with the noncommercial content being primarily or entirely pretextual.[i] Such use is unlikely to give rise to rights or legitimate interests for purposes of the Policy. See, e.g., Microsoft Corp. v. Sourabh Chhabra, Avast Software s.r.o., Dixit Deepti, Hari Om, No. 101794 (Czech Arb. Ct. Mar. 8, 2021) (finding lack of rights or interests in similar circumstances); Shutterstock, Inc. v. Domain Administrator, See PrivacyGuardian.org / Samir Basmir, D2020-2565 (WIPO Dec. 29, 2020) (same); Snap Inc. v. A Firman Zakki Rosyadi, supra (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
The disputed domain name incorporates Complainant's registered mark without authorization. It is registered in the name of what the Panel infers to be a privacy registration service, presumably concealing the identity of the beneficial registrant. It is being used for a misleading website that repeatedly displays the mark and associated logos, apparently for the purpose of generating revenue from pay-per-click links and advertisements, with the content being primarily or entirely pretextual. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Microsoft Corp. v. Sourabh Chhabra, Avast Software s.r.o., Dixit Deepti, Hari Om, supra (finding bad faith in similar circumstances); Shutterstock, Inc. v. Domain Administrator, See PrivacyGuardian.org / Samir Basmir, supra (same); Snap Inc. v. A Firman Zakki Rosyadi, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <telechargersnapchat.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: November 29, 2021
[i] The website does include a copyright statement in the footer disclaiming any connection with Complainant. However, the footer is not mentioned in the Complaint and does not appear in the screenshots that accompany the Complaint. The Panel infers from Respondent's failure to raise this point and to participate in this proceeding that the disclaimer may be a recent addition to the website.
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