Snap Inc. v. Victoria Waldrip / Jon Jenkins / GRQ
Claim Number: FA1901001823861
Complainant is Snap Inc. (“Complainant”), represented by Peter Kidd of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Victoria Waldrip / Jon Jenkins / GRQ (“Respondent”), Georgia, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <snapfollowers.club> and <snapfollows.site>, registered with NameCheap, Inc.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 4, 2019; the Forum received payment on January 4, 2019.
On January 7, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <snapfollowers.club> and <snapfollows.site> domain names are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. 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 January 9, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 29, 2019 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@snapfollowers.club, postmaster@snapfollows.site. Also on January 9, 2019, 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 1, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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 names be transferred from Respondent to Complainant.
A. Complainant
1. Complainant, Snap Inc., owns and distributes the popular SNAPCHAT camera, messaging application, and storytelling platform. Complainant has rights in the SNAP mark based upon its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 3,395,605, registered Mar. 11, 2008).
2. Respondent’s <snapfollowers.club> domain name is confusingly similar to Complainant’s SNAP mark as it incorporates the mark in its entirety and is differentiated only by the addition of the generic and/or descriptive term “followers” and the “.club” generic top-level domain name (“gTLD”). Respondent’s <snapfollows.site> domain name is also confusingly similar to Complainant’s SNAP mark as it incorporates the mark in its entirety and is differentiated only by the generic and/or descriptive term “follows” and the “.site” gTLD.
3. Respondent lacks rights and legitimate interests in the <snapfollowers.club> and <snapfollows.site>[i] domain names because Respondent is not commonly known by the domain names and is not authorized to use Complainant’s mark in any manner.
4. Furthermore, Respondent fails to use the domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Instead, Respondent attempts to commercially gain by diverting internet traffic to its’ own webpages to generate advertising referral income. Additionally, Respondent uses the domain names in furtherance of a phishing scheme to obtain Internet users’ personal and/or confidential information.
5. Respondent registered and uses the <snapfollowers.club> and <snapfollows.site> domain names in bad faith because Respondent attempts to commercially gain by diverting Internet users to its’ own webpages to generate advertising referral income. Additionally, Respondent uses the <snapfollowers.club> and <snapfollows.site> domain names in furtherance of a phishing scheme to obtain Internet users’ personal and/or confidential information.
6. Finally, Respondent had actual knowledge of Complainant’s rights in the SNAP mark prior to registering the domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the SNAP mark. Respondent’s domain name is confusingly similar to Complainant’s SNAP mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <snapfollowers.club> and <snapfollows.site> domain names and that Respondent registered and uses the 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 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 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 has rights in the SNAP mark based upon its registration of the mark with the USPTO. Registration of a mark with the USPTO is sufficient to establish Complainant’s rights in the mark per Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017).
Next, Complainant argues that Respondent’s <snapfollowers.club> and <snapfollows.site> domain names are confusingly similar to Complainant’s mark. First, Complainant argues that Respondent’s <snapfollowers.club> domain name is confusingly similar to Complainant’s SNAP mark as it incorporates the mark in its entirety and is differentiated only by the addition of the generic and/or descriptive term “followers” and the “.club” gTLD. Additionally, Complainant contends that Respondent’s <snapfollows.site> domain name is also confusingly similar to Complainant’s SNAP mark as it incorporates the mark in its entirety and is differentiated only by the generic and/or descriptive term “follows” and the “.site” gTLD. The additions of a generic and/or descriptive term combined with a mark in which another party has rights and a gTLD are not sufficient to distinguish a 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)); see also The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) (“[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i).”). Accordingly, Respondent’s <snapfollowers.club> and <snapfollows.site> domain names are confusingly similar to Complainant’s SNAP mark per Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <snapfollowers.club> and <snapfollows.site> domain names. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant argues that Respondent has no rights or legitimate interests in the <snapfollowers.club> and <snapfollows.site> domain names as Respondent is not commonly known by the domain names nor has Complainant authorized Respondent to use the SNAP mark in any way. Where a response is lacking, WHOIS information can support a finding that respondent is not commonly known by a disputed domain name per Policy ¶ 4(c)(ii). Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“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).”). Additionally, lack of authorization from a complainant to use its’ mark may be further evidence that a respondent in not commonly known by a domain name under Policy ¶ 4(c)(ii). See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information of record identifies Respondent as “Victoria Waldrip / Jon Jenkins / GRQ” and no information in the record indicates Respondent was authorized to register a domain name incorporating Complainant’s mark. The Panel holds that under Policy ¶ 4(c)(ii) Respondent is not commonly known by the <snapfollowers.club> and <snapfollows.site> domain names.
Furthermore, Complainant asserts that Respondent fails to use the <snapfollowers.club> and <snapfollows.site> domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Instead, Respondent attempts to commercially gain by diverting Internet users to its webpage to generate advertising referral income. Use of a domain name incorporating the mark of another to commercially gain through advertising referral income may not be considered a bona fide offering of goods and services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”). Complainant provides screenshots of the webpages associated with the domain names which prominently display Complainant’s logo and colors and purport to offer visitors a tool to artificially increase the number of followers and views in exchange for completing an advertising survey. Accordingly, under Policy ¶¶ 4(c)(i) or (iii), the Panel concludes that Respondent fails to use the <snapfollowers.club> and <snapfollows.site> domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use.
Additionally, Complainant contends that Respondent uses the <snapfollowers.club> and <snapfollows.site> domain names in furtherance of a phishing scheme to obtain Internet users’ personal and/or confidential information. Use of a domain name in furtherance of a phishing scheme may not be considered a bona fide offering of goods and services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent lacked rights and legitimate interests in a domain name with which it conducted a phishing scheme to procure “Internet users’ personal information”). Complainant provides screenshots of the webpages associated with the domain names which display an advertising survey which users are asked to provide their personal and/or confidential information. Therefore, under Policy ¶¶ 4(c)(i) or (iii) analysis, Respondent fails to use the <snapfollowers.club> and <snapfollows.site> domain names in connection with a bona fide offering of goods and services or a legitimate noncommercial or fair use.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <snapfollowers.club> and <snapfollows.site> domain names in bad faith because Respondent attempts to commercially gain by diverting Internet users to its webpage to generate advertising referral income. Use of a domain name incorporating the mark of another to attempt to commercially gain by diverting Internet users to a webpage in order to generate advertising referral income is evidence of bad faith under Policy ¶ 4(b)(iv). See ESPN, Inc. v. Ballerini, FA 95410 (Forum Sept. 15, 2000) (finding bad faith where the respondent linked the domain name to another domain name, <iwin.com>, presumably receiving a portion of the advertising revenue from the site by directing Internet traffic there, thus using a domain name to attract Internet users for commercial gain). Complainant has provided screenshots of the webpages associated with the <snapfollowers.club> and <snapfollows.site> domain names which prominently display Complainant’s logo and colors and purport to offer visitors a tool to artificially increase the number of followers and views in exchange for completing an advertising survey. Accordingly, the Panel holds that Respondent has registered and uses the <snapfollowers.club> and <snapfollows.site> domain names in bad faith.
Next, Complainant alleges that Respondent uses the <snapfollowers.club> and <snapfollows.site> domain names in furtherance of a phishing scheme. Such use is evidence of bad faith under Policy ¶ 4(a)(iii). See United States Postal Service v. kyle javier, FA 1787265 (Forum June 12, 2018) (“Use of a domain name to phish for Internet users’ personal information is evidence of bad faith.”). Complainant has provided screenshots of the webpages associated with the domain names which display an advertising survey in which users are asked to provide their personal and/or confidential information. Accordingly, the Panel finds that Respondent registered and uses the <snapfollowers.club> and <snapfollows.site> domain names in bad faith.
Finally, Respondent had actual knowledge of Complainant’s mark prior to registering the domain names. Where a mark is famous, a respondent may be presumed to have actual knowledge of complainant’s rights in the mark under Policy ¶ 4(a)(iii). See Coachella Music Festival, LLC v. ALEXANDER DE ALMEIDA LOPES, FA 1705267 (Forum Jan. 9, 2017) (finding the respondent had actual knowledge of the complainant’s COACHELLA mark when it registered and used the <coachellastuff.com> domain name—and thus did so in bad faith—because the complainant presented adequate evidence that its mark was well-known and famous). Complainant submits multiple articles that evidence the fame and notoriety of the SNAP mark around the world. Accordingly, the Panel concludes that Respondent had actual knowledge of Complainant’s rights in the mark prior to registering the <snapfollowers.club> and <snapfollows.site> domain names and thus registered and uses the domain names in bad faith under Policy ¶ 4(a)(iii).
The Panel finds 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 <snapfollowers.club> and <snapfollows.site> domain names be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: February 7, 2019
[i] The <snapfollowers.club> domain name was registered on March 7, 2018 and the <snapfollows.site> domain name was registered on February 8, 2018.
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