Snap Inc. v. snap / chat
Claim Number: FA1801001765499
Complainant is Snap Inc. (“Complainant”), represented by Peter Kidd of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is snap / chap (“Respondent”), Afghanistan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <snapchat.de.com>, registered with CSL Computer Service Langenbach GmbH d/b/a joker.com.
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.
Ho Hyun Nahm, Esq. as Panelist.
Complainant certifies it participated in the mandatory CentralNic Mediation and the mediation process was concluded/terminated.
Complainant submitted a Complaint to the Forum electronically on January 4, 2018; the Forum received payment on January 4, 2018.
On Jan 05, 2018, CSL Computer Service Langenbach GmbH d/b/a joker.com confirmed by e-mail to the Forum that the <snapchat.de.com> domain name(s) is/are registered with CSL Computer Service Langenbach GmbH d/b/a joker.com and that Respondent is the current registrant of the names. CSL Computer Service Langenbach GmbH d/b/a joker.com has verified that Respondent is bound by the CSL Computer Service Langenbach GmbH d/b/a joker.com registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the CentralNic Dispute Resolution Policy (the “CDRP Policy”).
On January 11, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 31, 2018 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@snapchat.de.com. Also on January 11, 2018, 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 February 5, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. 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 to the CDRP 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
i) Complainant, Snap Inc., designs and distributes the enormously popular SNAPCHAT messaging application that, among other things, allows users to share photographs, videos, and messages with others via mobile devices. Complainant has rights in the SNAPCHAT mark based upon its registration of the mark with multiple trademark agencies, including the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 4,375,712, registered July 30, 2013). See Compl. Annex L. Respondent’s <snapchat.de.com> domain name is identical and confusingly similar to Complainant’s SNAPCHAT mark, as the domain name consists entirely of the mark with only the addition of the “.de” country code top-level domain (“ccTLD”) and the “.com” generic top-level domain (“gTLD”).
ii) Respondent has no rights or legitimate interests in the <snapchat.de.com> domain name. Although the WHOIS information of record indicates Respondent is known as “Snap / Chat,” this is an obvious ruse. Further, Complainant has not authorized or licensed Respondent to own or use a domain name incorporating the SNAPCHAT mark. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the name to a website mimicking Complainant’s legitimate login page as part of a phishing scheme to steal user account information. See Compl. Annexes N–O.
iii) Respondent registered and is using the <snapchat.de.com> domain name in bad faith. Respondent uses the name primarily for the purpose of disrupting Complainant’s business by conducting a phishing scheme targeting Complainant’s customers. Moreover, Respondent used false contact details in registering the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes that Respondent registered the disputed domain name on November 17, 2017.
Complainant established that it had rights in the mark contained in the disputed domain name. Disputed domain name is confusingly similar to Complainant’s protected mark.
Respondent has no rights to or legitimate interests in the disputed domain name.
Respondent registered and used 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 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 or is being used in bad faith.
The CDRP also requires that Complainant have participated in a CentralNic Mediation, and that said mediation must have been terminated prior to the consideration of the Complaint.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the CDRP Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant claims rights in the SNAPCHAT mark based upon registration of the mark with multiple governmental trademark authorities, including the the USPTO (e.g. Reg. No. 4,375,712, registered July 30, 2013). See Compl. Annex L. 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 <snapchat.de.com> domain name is confusingly similar and identical to the SNAPCHAT mark, as the name consists entirely of the mark with only the addition of the “.de” country code top-level domain (“ccTLD”) and the “.com” generic top-level domain (“gTLD”). Such changes are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See Tupelo Honey Hospitality Corporation v. King, Reggie, FA 1732247 (Forum July 19, 2017) (“Addition of a gTLD is irrelevant where a mark has been fully incorporated into a domain name and the gTLD is the sole difference.”); see also CloudFlare, Inc. v. [Registrant], FA 1624251 (Forum Aug. 1, 2015) (holding, “The inclusion of a ccTLD does not alleviate the similarity between a mark and a disputed domain name as per Policy ¶ 4(a)(i).”). The Panel therefore determines the <snapchat.de.com> domain name is identical with the SNAPCHAT mark per Policy ¶ 4(a)(i).
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 <snapchat.de.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 a domain name. 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).”); see also Google Inc. v. S S / Google International, FA1506001625742 (Forum Aug. 4, 2015) (“Respondent did identify itself as ‘Google International’ in connection with its registration of the Disputed Domain Name, and this is reflected in the WHOIS information. However, Respondent has not provided affirmative evidence from which the Panel can conclude that Respondent was commonly known by the Disputed Domain Name before Respondent’s registration thereof.”). While the WHOIS information of record identifies Respondent as “Snap / Chat,” Complainant claims this is obviously a ruse, given that the website resolving from the <snapchat.de.com> domain name mimics Complainant’s website. Moreover, Complainant claims Respondent used the name “Nawaf” in registering the domain name <snapchat.style>, which has WHOIS information otherwise identical to that of the <snapchat.de.com> domain name. See Compl. Annex P. Further, no information on the record indicates Respondent was authorized to register a domain name incorporating Complainant’s mark. The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the <snapchat.de.com> domain name.
Complainant further argues Respondent’s lack of rights or legitimate interests in the <snapchat.de.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 instead that Respondent uses the domain name to pass off as Complainant in furtherance of a phishing scheme. Such use of a domain name is not one indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Kmart of Mich., Inc. v. Cone, FA 655014 (Forum Apr. 25, 2006) (The panel found the respondent’s attempt to pass itself of as the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii) when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website); see also DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”). Complainant claims the domain name resolves to a website which mimics Complainant’s legitimate login page which Respondent uses to steal user account information. See Annexes N–O. The Panel finds Respondent’s use of the <snapchat.de.com> domain name does not indicate it has rights or legitimate interests in the name per Policy ¶¶ 4(c)(i) or (iii).
Complainant claims Respondent’s use of the <snapchat.de.com> domain name to pass off as Complainant in order to create consumer confusion and disrupt Complainant’s business indicates it registered and sued the name in bad faith. Use of a domain name to create a false impression of affiliation with a complainant in order to disrupt the complainant’s business is behavior indicative of bad faith registration and use per Policy ¶¶ 4(b)(iii) and (iv). See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that the respondent’s registration and use of the disputed domain name, which displayed a website virtually identical to the complainant’s website, constituted bad faith pursuant to Policy ¶ 4(b)(iii)); see also Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum December 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”). Complainant claims the at-issue domain name resolves to a website upon which Respondent displays a facsimile of Complainant’s legitimate login page. See Compl. Annexes N–O. The Panel therefore finds Respondent registered and/or used the <snapchat.de.com> domain name in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).
Complainant also contends Respondent’s use of the <snapchat.de.com> domain name to phish for consumer information further shows Respondent registered and used the name in bad faith. Phishing behavior can be independent evidence a domain name was registered and/or used in bad faith. See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”). The Panel recalls Complainant’s contention that Respondent uses the domain name to attempt to obtain account information from Complainant’s customers. See Compl. Annexes N–O. The Panel therefore finds Respondent registered and/or used the domain name in bad faith per Policy ¶ 4(a)(iii).
Having established all three elements required under the CDRP Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <snapchat.de.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: February 12, 2018
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