Snap, Inc. v. snap / chat / Nader ALshammri
Claim Number: FA1711001759582
Complainant is Snap, Inc. (“Complainant”), represented by Caroline Barbee of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is snap / chat / Nader ALshammri (“Respondent”), Afghanistan.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <teamsnapchat.com>, <helpsnapchat.com>, registered with Wild West Domains, LLC; and <snapchat.team>, <snapchat.black>, and <snapchat.style>, 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.
Charles A. Kuechenmeister
Complainant submitted a Complaint to the Forum electronically on November 21, 2017; the Forum received payment on November 21, 2017.
On Nov 22, 2017, CSL Computer Service Langenbach GmbH d/b/a joker.com; Wild West Domains, LLC confirmed by e-mail to the Forum that the <teamsnapchat.com>, <helpsnapchat.com>, are registered with Wild West Domains, LLC; and <snapchat.team>, <snapchat.black>, and <snapchat.style>, 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 and Wild West Domains, LLC have verified that Respondent is bound by the respective registration agreements 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 November 28, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 18, 2017 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@teamsnapchat.com, postmaster@helpsnapchat.com, postmaster@snapchat.team, postmaster@snapchat.black, postmaster@snapchat.style. Also on November 28, 2017, 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 January 12, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Charles A. Kuechenmeister 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
Complainant, Snap, Inc., designs and distributes the popular SNAPCHAT messaging application which 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 the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,375,712) on July 30, 2013, as well as other trademark agencies throughout the world. Respondent’s <teamsnapchat.com>, <helpsnapchat.com>, <snapchat.team>, <snapchat.black> and <snapchat.style> domain names (the Domain Names”) are confusingly similar to Complainant’s SNAPCHAT mark, as they each contain the mark in its entirety and add various generic top-level domains (“gTLDs”). The <teamsnapchat.com> and <helpsnapchat.com> domain names also add the generic or descriptive term “team” or “help.”
Respondent has no rights or legitimate interests in the Domain Names. Respondent is not commonly known by any of the Domain Names, nor has Complainant authorized Respondent to use the SNAPCHAT mark in a domain name. Respondent’s use of the Domain Names does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the <teamsnapchat.com>, <helpsnapchat.com>, and <snapchat.team> Domain Names each resolve to a fourth website, snapchat.de.com, and collectively mimick the official SNAPCHAT login page, as well as attempting to engage in a phishing scheme to steal user information. The <snapchat.black> and <snapchat.style> Domain Names currently resolve to inactive web sites.
Respondent registered and is using the Domain Names in bad faith. Respondent registered the <teamsnapchat.com> and <helpsnapchat.com> Domain Names in June 2017, and the <snapchat.team>, <snapchat.black>, and <snapchat.style> Domain Names in November 2017. Respondent uses the <teamsnapchat.com>, <helpsnapchat.com> and <snapchat.team> Domain Names to pass off as Complainant in furtherance of a phishing scheme in bad faith. The <snapchat.black> and <snapchat.style> Domain Names resolve to inactive web sites, which also indicates bad faith. Further, Respondent clearly had actual knowledge of Complainant and its rights in the SNAPCHAT mark at the time it registered and subsequently used the domain names. Finally, Respondent’s use of false contact information in registering the domain names demonstrates its bad faith.
B. Respondent
Respondent did not submit a Response in this proceeding.
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 will 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.”).
Preliminary Issue: Multiple Respondents
Paragraph 3(c) of the Rules provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Complainant alleges that the entities which control the Domain Names at issue here are controlled by the same person or entity, which is operating under several aliases. The contact email address for all five Domain Names is the same. See, Complaint Annex A. Additionally, the <teamsnapchat.com>, <helpsnapchat.com>, <snapchat.team>, redirect to a single website at snapchat.de.com (See Complaint Annexes Q–S), and this was registered with the same registrant information as <snapchat.black>, and the same contact information as <snapchat.style>. See Complaint Annex A. On this evidence, the Panel finds that all five Domain Names are registered by the same person or entity.
The Panel makes the findings and determinations set forth below with respect to the Domain Name.
Complainant’s rights in the SNAPCHAT mark are based upon its registration of the mark with the USPTO (Reg. No. 4,375,712) on July 30, 2013. See, Complaint Annex N. Registration of a mark with the USPTO is sufficient to establish rights in that mark. 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 its rights in the mark under Policy ¶ 4(a)(i).
Respondent’s <snapchat.team>, <snapchat.black> and <snapchat.style> Domain Names are confusingly similar to the SNAPCHAT mark, as they each consist of the mark in its entirety and add a gTLD. Such changes are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”). The Panel finds that the <snapchat.team>, <snapchat.black>, and <snapchat.style> Domain Names are identical or confusingly similar to the mark per Policy ¶ 4(a)(i).
The <teamsnapchat.com> and <helpsnapchat.com> Domain Names also add the generic or descriptive term “team” or “help” to the fully incorporated mark. Addition of a generic or descriptive term to a mark is insufficient to distinguish the resultant domain name form the mark in a Policy ¶ 4(a)(i) analysis. Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy). The Panel therefore determines that the <teamsnapchat.com> and <helpsnapchat.com> Domain Names are confusingly similar to the SNAPCHAT mark for the purposes of Policy ¶ 4(a)(i).
Based upon the foregoing, the Panel finds that the Domain Names are confusingly similar to the SNAPCHAT mark, in which Complainant has substantial and demonstrated rights.
If a complainant makes a prima facie case that the respondent lacks rights or legitimate interests in the domain name under Policy ¶ 4(a)(ii), the burden of production shifts to respondent to come forward with evidence that it has rights or legitimate interests in it. If a respondent fails to come forward with such evidence, the complainant’s prima facie evidence will be sufficient to establish that respondent lacks such rights or legitimate interest. If, though, the respondent does come forward with such evidence, the Panel must assess the evidence in its entirety. At all times, the burden of proof remains on the complainant. WIPO Overview 3.0 at ¶ 2.1.
Policy ¶ 4(c) lists the following three nonexclusive circumstances, any one of which if proven to exist can demonstrate rights or legitimate interests in a domain name for the purposes of Policy ¶ 4(a)(ii):
(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 or commercial gain to misleadingly divert consumers of to tarnish the trademark or service mark at issue.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Names because (i) Respondent is not commonly known by the Domain Names, (ii) Complainant has not authorized Respondent to use its SNAPCHAT mark, and (iii) Respondent is not using the Domain Names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or other fair use because the web site resolving from four of them mimics and impersonates Complainant’s web site and solicits private information from visitors in a fraudulent phishing scheme, and the web sites resolving from the other two are inactive. Neither of these uses qualifies as a bona fide offering of goods and services, or a legitimate noncommercial or fair use of a domain name. These allegations are supported by competent evidence. The WHOIS record associated with this case identifies the registrant variously as “Nader ALshammri,” “Snap,” and “Nawaf.” See, Complaint Annex A. The fact that the name of the registrant of the Domain Names <snapchat.team> and <snapchat.black> is “Snap” suggests that Respondent may be commonly known by one or more of the Domain Names, but the email address for this “Snap” is the same as the email address for the other named registrants, which indicates that “Snap” is not a legitimate entity or business. In the absence of evidence showing that the Respondent actually engages in some business or other activity under that name, Respondent’s registration of one of the Domain Names in the name “Snap,” standing alone, is not sufficient to fit Respondent within Policy ¶ 4(c)(ii). 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”), Gianluca Lionetto and Tonic Consultancy Pte Ltd v. TENNIS TONIC, FA 1744744 (Forum September 12, 2017) (holding that registrant was not commonly known by complainant’s mark although used disingenuously as registrant’s name). Further, Complainant states that it has never authorized Respondent to use its SNAPCHAT mark in any domain name registration. Complainant has specific competence to make this statement, and it is unchallenged by any evidence before the Panel.
Complaint Annexes Q and S demonstrate that the <teamsnapchat.com>, <helpsnapchat.com>, and <snapchat.team> Domain Names collectively resolve to the website at snapchat.de.com and all the Domain Names mimic and impersonate the current online login page of Complainant, soliciting user name or email address and password information from site visitors. See, Complaint Annex Q, S. Such use does not qualify as a bona fide offering of goods or services, or a noncommercial or fair use of a domain name within the meaning of Policy ¶¶ 4(c)(i) or (iii). See 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.”).
Complaint Annex T contains a screenshot of the web site resolving from each of the Domain Names <snapchat.black>, and <snapchat.style>. The first of these is completely blank and the second is merely a registrar set-up page the site owner would use to post substantive content. Failure to make active use of a domain name is evidence that a respondent is not using the disputed domain name for a bona fide offering of goods or services or a noncommercial or fair use within the meaning of Policy ¶ 4(c)(i) and (iii). Activision Blizzard, Inc. / Activision Publishing, Inc. / Blizzard Entertainment, Inc. v. Cimpress Schweiz GmbH, FA 1737429 (Forum Aug. 3, 2017) (“Complainant insists that Respondent has made no demonstrable preparations to use the disputed domain name. When Respondent is not using the disputed domain name in connection with an active website, the Panel may find that Respondent is not using the disputed domain name for a bona fide offering of goods or services… As Respondent has not provided a response to this action, Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain”).
Complainant has made its prima facie case. On the evidence presented, the Panel finds that Respondent has no rights or legitimate interests in the Domain Names.
Registration and Use in Bad Faith
Respondent’s passing-off behavior described above as regards the Domain Names <teamsnapchat.com>, <helpsnapchat.com>, and <snapchat.team> is also evidence of bad faith registration and use of those Domain Names. Target Brands, Inc. v. JK Internet Servs., FA 349108 (Forum Dec. 14, 2004) (finding bad faith because the respondent not only registered Complainant’s famous TARGET mark, but “reproduced . . . Complainant’s TARGET mark . . . [and] added Complainant’s distinctive red bull’s eye [at the domain name] . . . to a point of being indistinguishable from the original.”).
Further, the evidence of Respondent’s failure to make an active use of the <snapchat.black>, and <snapchat.style> Domain Names discussed above is also evidence of its bad faith registration and use of these names. VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”).
Finally, because of the extent to which the <teamsnapchat.com>, <helpsnapchat.com>, and <snapchat.team> Domain Names collectively resolve to the website at snapchat.de.com and all the Domain Names mimic and impersonate the current online login page of Complainant, soliciting user name or email address and password information from site visitors, it is certain that Respondent had actual knowledge of Complainant’s SNAPCHAT mark when it registered all five Domain Names. This has consistently been held to evidence bad faith registration. Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name), Chevron Intellectual Property LLC v. Richard Bailey/Jacobs, FA 1588430 (Forum Dec. 9, 2014) (finding that respondent’s behavior of sending emails impersonating complainant demonstrated that the domain name was registered with complainant in mind), and Michelin North America, Inc. v. Innis, FA 1511296 (Forum Dec. 27, 2013) (holding that respondent’s registration of domain names that were confusingly similar to complainant’s famous marks evidenced that respondent had actual knowledge of complainant’s marks and rights and registered the domain names in bad faith under Policy ¶ 4(a)(iii)).
For the reasons set forth above, the Panel finds that Respondent registered and is using the Domain Name in bad faith within the meaning of Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <teamsnapchat.com>, <helpsnapchat.com>, <snapchat.team>, <snapchat.black> and <snapchat.style> Domain Names domain name be TRANSFERRED from Respondent to Complainant.
Charles A. Kuechenmeister, Panelist
Dated: January 15, 2018
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