Snap Inc. v. Arian Demnika
Claim Number: FA1908001858543
Complainant is Snap Inc. (“Complainant”), represented by Peter Kidd of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Arian Demnika (“Respondent”), Kosovo.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <isnapbabes.com> (‘the Domain Name’) registered with Name.com, Inc..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 21, 2019; the Forum received payment on August 21, 2019.
On August 22, 2019, Name.com, Inc. confirmed by e-mail to the Forum that the <isnapbabes.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 August 29, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 18, 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@isnapbabes.com. Also on August 29, 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 September 19, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of the mark SNAP registered, inter alia, in the USA for computer software with first use recorded as 2012.
The Domain Name is confusingly similar to the Complainant’s SNAP mark adding only the single letter ‘i’ and the generic word ‘babes’ which do not prevent this confusing similarity.
The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by the Domain Name and is not authorized by the Complainant.
The Domain Name has been used for commercial adult content in violation of the Complainant’s terms of its SNAPCHAT services selling access to SNAPCHAT accounts for provision of adult content. This is not a bona fide offering of goods or services or a legitimate noncommercial fair use.
Respondent registered and is using the Domain Name in bad faith to drive traffic to Respondent’s adult orientated web site for Respondent’s financial gain which breaches the Complainant’s terms of service. The Domain Name was registered in 2016 two months after the complainant changed its name from Snapchat Inc. to Snap Inc. The web site refers to the Complainant’s SNAPCHAT services and promotes activity based on the Complainant’s services showing actual knowledge of the Complainant and its business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark SNAP registered, inter alia, in the USA for computer software with first use recorded as 2012.
The Domain Name registered in 2016 has been used for adult content.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Identical and/or Confusingly Similar
The Domain Name consists of the Complainant’s SNAP mark (registered inter alia in the USA for computer software with first use recorded as 2012), the generic term ‘babes’, the letter ‘i’ and the gTLD “.com.”
Previous panels have found confusing similarity when a respondent merely adds generic terms to a Complainant's mark. See PG&E Corp. v. Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The Panel agrees that the addition of the generic term ‘babes’ to the Complainant's SNAP mark does not distinguish the Domain Name from the Complainant's registered trade mark pursuant to the Policy.
Panels have found that adding one letter to the registered mark does not distinguish a domain name from that mark. See Twitch Interactive, Inc. v. Antonio Teggi, FA 1626528 (Forum Aug. 3, 2015).
The gTLD “.com” does not serve to distinguish the Domain Name from the SNAP mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose to a mark in which the Complainant has rights.
Rights or Legitimate Interests
The Respondent has not provided any evidence that it is commonly known by the Domain Name. The Complainant has not authorised the Respondent to use its SNAP mark. The use of the Domain Name is commercial and so cannot be legitimate non-commercial use.
The use of a domain name containing the trademark of another to resolve to adult orientated material cannot constitute a bona fide use. See Altria Group, Inc. and Altria Group Distribution Company v. xiazihong, FA 1732665 (Forum July 7, 2017).
As such, the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Respondent’s web site refers to the Complainant’s services and promotes a purpose that depends on them showing that the Respondent is aware of the Complainant and its rights. Use of a domain name containing a trademark in relation to a web page hosting adult material is evidence of bad faith registration and use under Policy 4 (b)(iii). See Molson Canada 2005 v. JEAN LUCAS/DOMCHARME GROUP, FA 1412001596702 (Forum Feb. 10, 2015). There is, therefore, no need to consider any additional grounds of bad faith.
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <isnapbabes.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: September 19, 2019
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