Snap Inc. v. Océane Tydgat
Claim Number: FA2005001895191
Complainant is Snap Inc. (“Complainant”), represented by Camden Minervino of Kilpatrick, Townsend & Stockton LLP, California, USA. Respondent is Océane Tydgat (“Respondent”), France.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <snapchaudasse.com>, registered with OVH sas.
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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 6, 2020; the Forum received payment on May 6, 2020.
On May 7, 2020, OVH sas confirmed by e-mail to the Forum that the <snapchaudasse.com> domain name is registered with OVH sas and that Respondent is the current registrant of the name. OVH sas has verified that Respondent is bound by the OVH sas 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 May 12, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 1, 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@snapchaudasse.com. Also on May 12, 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 June 6, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons 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 asserts trademark rights in SNAP. Complainant holds a national registration for that trademark. Complainant submits that the disputed domain name is confusingly similar to its trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent registered and used the disputed domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The factual findings pertinent to the decision in this case are that:
1. Complainant develops and licenses the use of smartphone applications and is best known for its camera and messaging application promoted by reference to the trademark SNAPCHAT;
2. In September 2016 Complainant changed its name from Snapchat Inc., to Snap Inc., in order to reflect its broader offering of smartphone applications beyond the SNAPCHAT application;
3. With some perspicuity Complainant registered the trademark, SNAP, on June 4, 2013 with the United States Patent and Trademark Office (“USPTO”) as Reg. No. 4,345,533;
4. The disputed domain name was registered on July 27, 2016 and resolves to a website carrying pornographic material; and
5. There is no relationship between the parties and Complainant has not authorized Respondent to use its trademark or to register any domain name incorporating the trademark.
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."
As a preliminary matter, the Panel notes that the registration agreement is written in the French language, thus making French the language of these proceedings under Rule 11(a). However, Complainant petitions the Panel to exercise its discretion to conduct the proceedings in English because it would be expedient to do so and would not prejudice Respondent who is allegedly conversant in English and who has failed to submit a Response. In support of that submission, Complainant points to the fact that the disputed domain name incorporates the trademark SNAP and uses the trademark SNAPCHAT on the resolving website. It then states that “[t]he SNAP and SNAPCHAT marks are famous and are highly distinctive terms in English” and the domain name “is registered in connection with the “.com,” Top-Level Domain, which primarily targets English-speaking Internet users.” The Panel finds those submissions uncompelling but notes with more interest Complainant’s argument that “Respondent’s targeting of English-speaking consumers is shown through the website’s extensive use of English words, both on their own (e.g., “nudes,” “snap nudes,” “snap sex,” “snap sexy”).”
On balance, the Panel finds it more likely than not that Respondent could have read, understood and responded to the essentially planks of the Complaint. The Panel therefore finds that these administrative proceedings should continue in English.
Moving on to the substantive issues, 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.
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry—a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.
It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights (see, for example, Mothers Against Drunk Driving v. phix, FA 174052 (Forum Sept. 25, 2003)). Complainant therefore has rights as it provides proof of its registration of the trademark SNAP with the USPTO, a national trademark authority.
For the purposes of comparison of the disputed domain name with the trademark the gTLD, “.com” can be disregarded. The disputed domain name then differs from the trademark by addition of the French word, “chaudasse”, which can be translated into English as “hottie,” a known slang term a sexually attractive person. The addition is of no distinctive value in terms of the overall impact of the compared terms. The Panel finds the domain name confusingly similar to the trademark (see, for example, Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) finding the addition of a generic term and gTLD insufficient to distinguish a disputed domain name from a corresponding mark under Policy ¶ 4(a)(i); see also, Guccio Gucci S.p.A. v. Bo Zhou, D2013-1624 (WIPO Nov. 20, 2013) finding, amongst others, <hottiesguccijapan.com>, finding confusing similar to complainant’s GUCCI mark).
The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests (see, for example, Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000)).
The identity of the domain name registrant is masked by a privacy shield but in consequence of these proceedings the underlying registrant was identified as “Océane Tydgat” which does not suggest that Respondent might be commonly known by the domain name. There is no evidence that Respondent has any relevant trademark rights and no information on the record indicates Respondent was authorized to register a domain name incorporating Complainant’s mark.
The domain name resolves to a website as described. Such use is clearly not a bona fide offering of goods or services or legitimate noncommercial or fair use under the Policy (see, for example, Altria Group, Inc. and Altria Group Distribution Company v. xiazihong, FA1732665 (Forum July 7, 2017) holding that “[u]se of a domain name to display adult-oriented images is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy.”; Andrey Ternovskiy dba Chatroulette v. Abdelbasset Selmi, FA 1638963 (Forum Oct. 28, 2015) finding the respondent’s use of the at-issue domain name to resolve to pornographic content indicated the respondent registered and used the <chatroulette.us> domain name in bad faith per Policy ¶ 4(b)(iv)).
The onus shifts to Respondent and in the absence of a Response, the Panel finds that Respondent has not discharged the onus and so finds that Complainant has satisfied the second limb of the Policy.
Complainant must prove on the balance of probabilities both that the disputed domain name was registered and used in bad faith.
Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established.
The four specified circumstances are:
‘(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent’s website 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 the respondent’s website or location or of a product or service on the site or location.’
The Panel finds that Respondent’s conduct falls squarely under paragraph 4(b)(iv) above. The Panel has already found the disputed domain name to be confusingly similar to the trademark. There is no apparent reason for Respondent to register the name in good faith since the trademark is well-known and appears to only refer to Complainant’s business. The Panel finds that Respondent has targeted Complainant and its trademark. The Panel also finds that the use of the domain name is for commercial gain in one form or another and that all the elements of paragraph 4(b)(iv) are met.
Accordingly, the Panel finds that the third and final element of the Policy is satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <snapchaudasse.com> domain name be TRANSFERRED from Respondent to Complainant.
Debrett G. Lyons, Panelist
Dated: June 10, 2020
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