URS FINAL DETERMINATION
Instagram, LLC v. Run Above et al.
Claim Number: FA1510001642662
DOMAIN NAME
<instagram.ovh>
PARTIES
| Complainant: Instagram, LLC of Menlo Park, CA, United States of America | |
|
Complainant Representative: Hogan Lovells (Paris) LLP
David Taylor of Paris, France
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| Respondent: Run Above of Montreal, II, Canada | |
REGISTRIES and REGISTRARS
| Registries: OVH SAS | |
| Registrars: OVH |
EXAMINER
| The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Examiner in this proceeding. | |
| Saravanan Dhandapani, as Examiner |
PROCEDURAL HISTORY
| Complainant Submitted: October 16, 2015 | |
| Commencement: October 16, 2015 | |
| Response Date: October 28, 2015 | |
| Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules"). |
RELIEF SOUGHT
| Complainant requests that the domain name be suspended for the life of the registration. |
STANDARD OF REVIEW
| Clear and convincing evidence. |
FINDINGS and DISCUSSION
| Procedural Findings: | ||
| Multiple Complainants: No multiple Complainants are involved in this proceeding. This Complaint and findings relate to the domain name <instagram.ovh>. No domain name is dismissed from this Complaint. | ||
| Multiple Respondents: No multiple Respondents are involved in this proceeding. This Complaint and findings relate to the domain name <instagram.ovh>. No domain name is dismissed from this Complaint. | ||
| Findings of Fact: The Complainant states inter-alia that the Complainant is the world's leading online photo and video sharing social networking application; since it was launched on 6 October 2010, Instagram has rapidly developed considerable goodwill and renown worldwide; acquired by Facebook Inc. in 2012, Instagram is currently the fastest growing social media in the world, with over 400 million monthly active users; its website available at www.instagram.com is ranked the 25th most visited website in the world and its "app" has consistently ranked amongst the top applications for mobile devices; the Complainant has trademark registrations in the term INSTAGRAM in many jurisdictions around the world, including in Canada which are in current use; the Domain Name identically reproduces the complainant's trademark without adornment under the new generic top level domain .OVH; the suffix .OVH is generally irrelevant when assessing identity or confusingly similarity as it is a functional element. The Complainant further states inter-alia that the Respondent has no rights or legitimate interests in the Domain Name; the Respondent is not associated with the Complainant in any way and has not been authorized by the Complainant to make any use of its trademark; the Respondent is not commonly known by the Domain Name; neither is the Respondent making a bona fide offering of goods or services or a legitimate non-commercial or fair use of the Domain Name as it is pointing to a website promoting a software program called Libreboard which has no connection with the Complainant. The Complainant further states inter-alia that the Domain Name was registered and is being used in bad faith; the Complainant's trademark is well-known worldwide, including in Canada where the Respondent appears to be based; the Domain Name was registered in 2015, five years after the Complainant's launch; thus the Respondent was undoubtedly aware of the Complainant's rights at the time of registration and no doubt sought to take advantage of them; the Respondent registered the Domain Name to prevent the Complainant from reflecting its trademark in a corresponding domain name, and has engaged in a pattern of such conduct. In this regard, the Respondent is also the registrant of other domain names infringing third party trademarks, for instance, <bentley.ovh> and <wordpress-meetup.ovh>; the Respondent is using the Domain Name to intentionally attract, for commercial gain, internet users to its own website by creating a likelihood of confusion with the Complainant's trademark as to the source or sponsorship of its website; and finally, given the notoriety surrounding the INSTAGRAM trademark and the nature of the Domain Name itself, which consists of an exact match of the Complainant's trademark, there simply cannot be any actual or contemplated good faith use of the Domain Name, as it would inevitably create a false association with the Complainant which would be misleading and take unfair advantage of the Complainant's rights. The Complainant also refers to WIPO Case No. D2000-0003 between Telstra Corporation Limited v. Nuclear Marshmallows. |
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URS Procedure 1.2.6, requires Complainant to prove, by clear and convincing evidence, each of the following three elements to obtain an order that a domain name should be suspended.
[URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly similar
to a word mark: Determined: Finding for Complainant The Respondent has filed their Response to the Complaint wherein the Respondent has categorically stated that they are not refuting the Complainant’s allegations regarding the potential confusion with the trademark of the Complainant. In view of the categorical admission, the Examiner determines that URS 1.2.6.1(i) covers the domain name at issue in this Complaint. [URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name. Determined: Finding for Complainant The Respondent has filed their Response to the Complaint wherein the Respondent has categorically stated that they agree not to use the domain name regarding the lack of legitimate right or interest to the domain name. The Respondent has not disputed the contents of the Complainant. Hence, based on the record and categorical admission of the Respondent the Examiner determines that URS 1.2.6.2 covers the domain name at issue in this Complaint and that the Respondent has no legitimate right or interest to the domain name.
[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
Determined: Finding for Complainant The Respondent has filed their Response to the Complaint wherein the Respondent has categorically stated that they agree for suspension of the domain name in the framework of the URS. The Respondent has not all disputed the contents of the Complainant. Hence, based on records and categorical admission of the Respondent it is lawful to conclude that the disputed domain name was registered in bad faith. Thus the Examiner determines that URS 1.2.6.3 (b) and (d) covers the domain name at issue in this Complaint and the domain name was registered and is being used in bad faith. FINDING OF ABUSE or MATERIAL FALSEHOOD The Examiner may find that the Complaint was brought in an abuse of this proceeding or that it contained material falsehoods. The Examiner finds as follows:
DETERMINATION
After reviewing the parties’ submissions, the Examiner determines that the Complainant
has demonstrated all three elements of the URS by a standard of clear and convincing
evidence; the Examiner hereby Orders the following domain name(s) be SUSPENDED for
the duration of the registration:
|
Saravanan Dhandapani
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