Snap Inc. v. elias elias
Claim Number: FA1903001833270
Complainant is Snap Inc. (“Complainant”), represented by Peter Kidd of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is elias elias (“Respondent”), Egypt.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <elsnapchat.com>, registered with Name.com, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 8, 2019; the Forum received payment on March 8, 2019.
On March 11, 2019, Name.com, Inc. confirmed by e-mail to the Forum that the <elsnapchat.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, 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 March 12, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 1, 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@elsnapchat.com. Also on March 12, 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 April 2, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it develops, owns and distributes the enormously popular SNAPCHAT camera and messaging application, and storytelling platform that, among other things, allows users to share photographs, videos, and messages called “Snaps” with others via mobile devices. By February 2017, the Snapchat App had an estimated 79% market share among teenagers and young adults in the United States, giving it the highest reach of social media and networking sites, surpassing Facebook, Instagram, and Twitter. As of September 2017, the Snapchat App had more than 178 million daily active users globally, a 250% increase since 2014, who on average sent an estimated 3.5 billion Snaps every day. By the end of 2017, the number of daily active users of the Snapchat App increased 8.9 million or 5% sequentially to 187 million. At the end of 2017, Apple reported that the Snapchat App was the second most-downloaded app in its App Store, second only to Snap’s Bitmoji mobile application which is integrated with the Snapchat Application, and at the end of 2018 the Snapchat App remained in the top 3 most downloaded apps. In the first quarter of 2018, the number of daily active users of the Snapchat App increased to 191 million. Complainant has rights in the SNAPCHAT mark through its registration of the mark in the United States in 2013.
Complainant alleges that the disputed domain name is identical or confusingly similar to Complainant’s mark as it incorporates the mark and merely adds the letters “el,” which are a transliteration of the Arabic term for “the”, along with the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, the website at the disputed domain name promotes Respondent’s competing social media services and contains extensive pay-per-click advertisements. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent registered and is using the domain name to divert Internet traffic to its competing social media website for Respondent’s commercial gain through pay-per-click advertisements, thereby disrupting Complainant’s business. Further, Respondent registered the domain name with actual knowledge of Complainant’s rights in its SNAPCHAT mark given the international fame of the mark, Complainant’s longstanding use of the mark, and Respondent use of Complainant’s marks and logos on the resolving website. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark SNAPCHAT dating back to 2013. The mark is used to market a popular camera and messaging application.
The disputed domain name was registered in 2017.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain names to resolve to a web site that promotes competing social media services and contains extensive pay-per-click advertisements.
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.”).
The disputed domain name is confusingly similar to Complainant’s mark as it incorporate the mark and merely adds the letters “el,” which are a transliteration of the Arabic term for “the” (and also mean “the” in Spanish), along with the “.com” gTLD. Similar changes in a registered mark have failed sufficiently to distinguish a domain name for the purposes of Policy ¶ 4(a)(i). See Bittrex, Inc. v. Sergey Valerievich Kireev / Kireev, FA 1784651 (Forum June 5, 2018) (holding that the domain name consists of the BITTREX mark and adds “the letters ‘btc’ and the gTLD .com which do not distinguish the Domain Name from Complainant’s mark.”). The Panel therefore finds that the <elsnapchat.com> domain name is confusingly similar to the SNAPCHAT mark under Policy ¶ 4(a)(i).
Complainant has not authorized, licensed, or otherwise permitted Respondent to use its mark. Respondent is not commonly known by the disputed domain name: absent a Response, relevant information includes the WHOIS, assertions by a complainant regarding the nature of its relationship with a respondent, and other evidence in the record to support these assertions. 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 Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”). Here, the WHOIS identifies “elias elias” as the registrant. Accordingly, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website promotes Respondent’s competing social media services and contains extensive pay-per-click advertisements. Using a confusingly similar domain name to compete with a complainant and to provide pay-per-click advertisements can evince a failure to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy. See Vanguard Trademark Holdings USA LLC v. Dan Stanley Saturne, FA 1785085 (Forum June 8, 2018) (“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” where “Respondent is apparently using the disputed domain name to offer for sale competing services.”); see also 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.”). As such, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and/or (iii). Moreover, the Panel finds that Respondent lacks rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent is using the disputed domain name to divert Internet traffic to its competing social media website for Respondent’s commercial gain through pay-per-click advertisements, thereby disrupting Complainant’s business. Using a confusingly similar domain name to compete with a complainant and commercially benefit through pay-per-click links can evince bad faith under Policy ¶¶ 4(b)(iii) & (iv). See Transamerica Corporation v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1798316 (Forum Aug. 20, 2018) (“Respondent's use of the domain name to link to competitors of Complainant, presumably generating pay-per-click or referral fees for Respondent, is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv).”) see also Colin LeMahieu v. NANO DARK, FA 1786065 (Forum June 9, 2018) (Finding bad faith under Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv) where the respondent used the domain name to offer competing cryptocurrency products). Accordingly, the Panel finds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶¶ 4(b)(iii) & (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <elsnapchat.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: April 2, 2019
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