Snap Inc. v. Samer Araar / Al Faha Company
Claim Number: FA1911001869958
Complainant is Snap Inc. (“Complainant”), represented by Dennis L. Wilson, of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is SAMER ARAAR / AL FAHAD COMPANY (“Respondent”), Kuwait.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <snapchatq8.com>, <snapchatkw.com>, and <snapchatco.com>, registered with Fastdomain 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.
The Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 5, 2019; the Forum received payment on November 5, 2019.
On November 6, 2019, Fastdomain Inc. confirmed by e-mail to the Forum that the <snapchatq8.com>, <snapchatkw.com>, and <snapchatco.com> domain names are registered with Fastdomain Inc. and that Respondent is the current registrant of the names. Fastdomain Inc. has verified that Respondent is bound by the Fastdomain 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 November 6, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 26, 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@snapchatq8.com, postmaster@snapchatkw.com, postmaster@snapchatco.com. Also on November 6, 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 November 30, 2019 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honourable Neil Anthony Brown QC 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 made the following contentions.
Complainant, Snap Inc., is a leading smartphone application in the social media industry. Complainant has rights in the SNAPCHAT mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,375,712, registered on Jul. 30, 2013). See Compl. Annex P. Respondent’s domain names <snapchatq8.com>, <snapchatkw.com>, and <snapchatco.com> are confusingly similar to Complainant’s SNAPCHAT mark as they incorporate the mark in its entirety, merely adding either a generic or geographical term and the “.com” generic top-level domain (“gTLD”) to the mark.
Respondent lacks rights or legitimate interests in the <snapchatq8.com>, <snapchatkw.com>, and <snapchatco.com> domain names. Respondent is not commonly known by the disputed domain names and Respondent is not a licensee or authorized to use the Complainant’s SNAPCHAT mark. Additionally, Respondent fails to use the disputed domain names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain names to offer services that directly compete with Complainant and its business. Additionally, Respondent engages in a fraudulent phishing scheme.
Respondent registered and uses the <snapchatq8.com>, <snapchatkw.com>, and <snapchatco.com> domain names in bad faith. Respondent is attempting to attract Internet users to its competing website for commercial gain. Additionally, engages in a fraudulent phishing scheme. Finally, Respondent had actual knowledge of Complainant’s rights in the SNAPCHAT mark prior to the registration of the disputed domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States company that provides a leading smartphone application for use in the social media industry.
2. Complainant has established its trademark rights in the SNAPCHAT mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,375,712, registered on Jul. 30, 2013).
3. Respondent registered the disputed domain names on November 21, 2015.
4. Respondent has caused the disputed domain names to be used to offer services that directly compete with Complainant and its business and for a fraudulent phishing scheme.
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”).
The first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant submits that it has rights in the SNAPCHAT mark based upon its registration with the USPTO. Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Complainant provides copies of its registration of the SNAPCHAT mark with the USPTO (e.g., Reg. No. 4,375,712, registered on July 30, 2013). See Compl. Annex P. Accordingly, the Panel finds that Complainant has established rights in the SNAPCHAT mark for the purposes of Policy ¶ 4(a)(i).
The next question that arises is whether the disputed domain names are identical or confusingly similar to Complainant’s SNAPCHAT mark. Complainant argues that Respondent’s <snapchatq8.com>, <snapchatkw.com>, and <snapchatco.com> domain names are confusingly similar to Complainant’s SNAPCHAT mark as they incorporate the SNAPCHAT mark in its entirety and add either generic or geographical terms and a gTLD. Addition of a generic or geographical term along with addition of a gTLD does not distinguish a disputed domain name for purposes of Policy ¶ 4(a)(i). See Doosan Corporation v. philippe champain, FA 1636675 (Forum Oct. 13, 2015) (finding that geographic designations or terms descriptive of a complainant’s business operations do not remove a domain name from the realm of confusing similarity.); see also MFI UK Ltd. v. Jones, D2003-0102 (WIPO May 8, 2003) (finding the <mfiuk.com> domain name confusingly similar to the complainant’s MFI mark because the addition of the letters “UK” were merely a common designation for the United Kingdom); see also Bittrex, Inc. v. Privacy protection service - whoisproxy.ru, FA 1759828 (Forum Jan. 12, 2018) (“The Panel here finds that the <bittrex.market> domain name is identical to the BITTREX mark under Policy ¶4(a)(i).”). Complainant contends that Respondent uses the entire SNAPCHAT mark and adds the generic term “co” in the <snapchatco.com> domain name and the geographical terms “q8” and “kw” in the <snapchatq8.com> and <snapchatkw.com> domain names which may be understood as referencing Kuwait. In addition, Respondent adds the “.com” gTLD to the mark. Therefore, as the Panel agrees, the Panel finds that the disputed domain names are identical or confusingly similar pursuant to Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s SNAPCHAT trademark and to use it in its domain names, which incorporates the mark in its entirety, along with various generic or geographical terms that do not negate the confusing similarity with Complainant’s trademark;
(b) Respondent registered the disputed domain names on November 21, 2015;
(c) Respondent has caused the disputed domain names to be used to offer services that directly compete with Complainant and its business and for a fraudulent phishing scheme;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant contends Respondent lacks rights or legitimate interests in the <snapchatq8.com>, <snapchatkw.com>, and <snapchatco.com> domain names. Specifically, Complainant argues that Respondent is not commonly known by the disputed domain names and Respondent is not a licensee or authorized to use Complainant’s SNAPCHAT mark. Where a response is absent, WHOIS information may be used to determine whether a respondent is commonly known by a disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by a disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain names lists the registrant as “Samer Araar,” and there is no other evidence to suggest that Respondent was authorized to use the SNAPCHAT mark. See Compl. Annex A. Therefore, the Panel finds Respondent is not commonly known by the disputed domain names per ¶ 4(c)(ii);
(f) Complainant next argues Respondent fails to use the <snapchatq8.com>, <snapchatkw.com>, and <snapchatco.com> domain names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent’s disputed domain names all resolve to a webpage offering a service to increase followers on a social media platform that competes with Complainant. Using a domain name to redirect internet users in order to offer competing services does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Alcon, Inc. v. ARanked, FA 1306493 (Forum Mar. 18, 2010) (“The Panel finds that capitalizing on the well-known marks of Complainant by attracting internet users to its disputed domain names where Respondent sells competing products of Complainant is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”); see also General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Complainant provides screenshots of the disputed domain names’ resolving webpages which purportedly offer social media services that directly compete with Complainant. See Compl. Annex R. The Panel therefore finds Respondent fails to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or legitimate noncommercial or fair use per Policy ¶ 4(c)(iii);
(g) Complainant argues that Respondent’s resolving webpages are connected with a phishing scheme. Use of a domain name in connection with a phishing scheme does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) (“On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii).”); see also Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Complainant provides a screenshot of the disputed domain names’ resolving webpages which purport to trick users into revealing personal or confidential information under false pretenses. See Compl. Annex R. The Panel therefore finds Respondent fails to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).
All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain names.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain names were registered in bad faith and have been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain names were registered and used in bad faith. That is so for the following reasons.
First, Complainant argues that Respondent registered and uses the disputed domain names <snapchatq8.com>, <snapchatkw.com>, and <snapchatco.com> in bad faith because Respondent uses them to divert Internet users to a site that offers services that directly compete with Complainant and its business. Using a confusingly similar domain name to benefit commercially from a competing webpage can evince bad faith registration and use per Policy ¶¶ 4(b)(iii) and/or (iv). See ZIH Corp. v. ou yang lin q, FA1761403 (Forum Dec. 29, 2017) (Finding bad faith where Respondent used the infringing domain name to disrupt Complainant’s business by diverting Internet users from Complainant’s website to Respondent’s website where it offered competing printer products); see also Disney Enters., Inc. v. Noel, FA 198805 (Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”). Complainant provides screenshots of the disputed domain names’ resolving webpages which purportedly offer social media services that directly compete with Complainant. See Compl. Annex R. As the Panel agrees, the Panel finds that Respondent registered and uses the disputed domain names in bad faith pursuant to Policy ¶¶ 4(b)(iii) and/or (iv).
Secondly, Complainant argues that Respondent engages in a phishing scheme to obtain Internet user’s personal information. A respondent’s use of a disputed domain name in connection with a phishing scheme is evidence of bad faith pursuant to Policy ¶ 4(a)(iii).”). See Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (“[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses that to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).”). Complainant provides a screenshot of the disputed domain names’ resolving webpages which purport to obtain personal information from Internet users under false pretenses. See Compl. Annex R. Therefore, as the Panel agrees, the Panel finds that Respondent registered and uses the disputed domain names in bad faith pursuant to Policy ¶ 4(a)(iii).
Fourthly, in addition and having regard to the totality of the evidence, the Panel finds that, in view of Respondent’s registration of the disputed domain names using the SNAPCHAT mark and in view of the conduct that Respondent has engaged in when using the disputed domain names, Respondent registered and used them in bad faith within the generally accepted meaning of that expression.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <snapchatq8.com>, <snapchatkw.com>, and <snapchatco.com> domain names be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC, Panelist
Dated: December 2, 2019
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