Snap Inc. v. Amy Farrington / Snapchat premium Amy Amos
Claim Number: FA2005001898089
Complainant is Snap Inc. (“Complainant”), represented by Emily A. DeBow of Kilpatrick Townsend & Stockton LLP, California, United States. Respondent is Amy Farrington / Snapchat premium Amy Amos (“Respondent”), Ohio, United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <snapchatpremiumamyamos.com>, registered with Google LLC.
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 May 28, 2020; the Forum received payment on May 28, 2020.
On May 29, 2020, Google LLC confirmed by e-mail to the Forum that the <snapchatpremiumamyamos.com> domain name is registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google LLC 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 June 2, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 22, 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@snapchatpremiumamyamos.com. Also on June 2, 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 25, 2020, 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant made the following contentions.
Complainant, Snap Inc., owns and distributes the Snapchat application. Complainant asserts rights in the SNAPCHAT mark through its registration of the mark with multiple trademark organizations, including the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,375,712, registered on July 30, 2013). See Compl. Annex Q. Respondent’s <snapchatpremiumamyamos.com> domain name is confusingly similar to Complainant’s mark, as it incorporates the SNAPCHAT mark in its entirety and merely adds the terms “premium amy amos” along with the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <snapchatpremiumamyamos.com> domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized Respondent’s use of the SNAPCHAT mark. Additionally, Complainant fails to use the <snapchatpremiumamyamos.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain names to host adult-oriented content.
Respondent registered and uses the <snapchatpremiumamyamos.com> domain name in bad faith. Respondent uses the disputed domain name to promote and facilitate activity that violates Complainant’s Terms of Services. Additionally, Complainant had knowledge of Complainants rights in the SNAPCHAT mark at the time of registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is United States company that owns and distributes the Snapchat application.
2. Complainant has established its trademark rights in the SNAPCHAT mark through its registration of the mark with multiple trademark organizations, including the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,375,712, registered on July 30, 2013).
3. Respondent registered the disputed domain name on January 23, 2020.
4. Respondent uses the disputed domain name to host adult-oriented 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”).
The first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant asserts rights in the SNAPCHAT mark through its registration of the mark with multiple trademark agencies. Registration of a mark with multiple trademark agencies around the world is sufficient to demonstrate rights in the mark under Policy ¶ 4(a)(i). See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA 1625332 (Forum July 17, 2015) (finding, “Registration of a mark with a governmental authority (or, in this case, multiple governmental authorities) is sufficient to establish rights in the mark for purposes of Policy ¶ 4(a)(i)”). Complainant provides evidence of its registration with the USPTO (e.g., Reg. No. 4,375,712, registered on July 30, 2013). See Compl. Annex Q. Therefore, the Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
The next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s SNAPCHAT mark. Complainant argues that Respondent’s <snapchatpremiumamyamos.com> domain name is confusingly similar to Complainant’s mark because the disputed domain name incorporates the SNAPCHAT mark in its entirety and merely adds the term “premium amy amos” along with the “.com” gTLD. The addition of a generic or descriptive term and a gTLD is not sufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).). Therefore, the Panel finds the disputed domain name is confusingly similar to Complainant’s mark per 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 name 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 mark and to use it in its domain name adding the term “premium amy amos”;
(b) Respondent registered the disputed domain name on January 23, 2020;
(c) Respondent uses the disputed domain name to host adult-oriented content;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant argues that Respondent does not have rights or legitimate interest in the <snapchatpremiumamyamos.com> domain name, as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the SNAPCAT mark. WHOIS information may be used to determine whether a respondent is has rights or legitimate interest in a disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Where a respondent appears to be commonly known by a disputed domain name, the Panel may still find the respondent lacks rights or legitimate interest in the disputed domain name if the respondent lacks authorization to use the complainant’s mark and the respondent fails to provide affirmative evidence in support of this identity. See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding that, although the respondent listed itself as “Jessie McKoy / Ripple Reserve Fund” in the WHOIS contact information, it did not provide any affirmative evidence to support this identity; combined with the fact that the complainant claimed it did not authorize the respondent to use the mark, the respondent is not commonly known by the domain name). The WHOIS information for the disputed domain name shows that the registrant’s name is “Amy Farrington / Snapchat premium Amy Amos” however Respondent provides no affirmative evidence in support of this identity and no evidence in the record indicates that Respondent is licensed to use Complainant’s mark or is known by the disputed domain name. See Compl. Annex. 1. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii);
(f) Complainant submits that Respondent fails to use the <snapchatpremiumamyamos.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses the domain name to host adult oriented material. Use of a domain to display adult-oriented images is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use. See National Spiritual Assembly of the Bahá’ís of the United States v. Moniker Privacy Services, FA 1644005 (Forum Dec. 1, 2015) (finding that the disputed domain’s resolving website contained adult-related content, including links to commercial pornographic websites, online, dating, and news related to porn actors and the porn industry, and therefore Respondent failed to provide a bona fide offering of goods or services or any legitimate noncommercial or fair use). Here, Complainant provides screenshots of the disputed domain’s resolving website that features pornographic images. See Compl. Annex S. Thus, the Panel agrees that Respondent’s use of the domain name indicates it lacks rights and legitimate interests in the disputed domain name per Policy ¶¶ 4(c)(i) and (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 does not have a right or legitimate interest in the disputed domain name.
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 name was registered in bad faith and has 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 name was registered and used in bad faith. That is so for the following reasons.
First ,while Complainant has not made arguments under Policy ¶ 4(b), such arguments are not required under the Policy—so long as Complainant shows bad faith use and registration in some manner. See Digi Int’l Inc. v. DDI Sys., FA 124506 (Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith); see also Bloomberg Finance L.P. v. Nikita A Paskhalnyy / Private Person, FA 1638757 (Forum Nov. 5, 2015) (the panel noting that Policy ¶ 4(b) factors “are meant to be merely illustrative of bad faith, and that Respondent’s bad faith may be demonstrated under the totality of the circumstances”). The Panel therefore finds Complainant’s Policy ¶ 4(a)(iii) arguments are sufficient to establish bad faith.
Secondly, Complainant contends that Respondent registered the <snapchatpremiumamyamos.com> domain name with knowledge of Complainant's rights in the mark. The Panel here may find that any arguments of bad faith based on constructive notice are irrelevant, however, because UDRP decisions generally decline to find bad faith as a result of constructive knowledge. See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."). The Panel agrees with Complainant, however, that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name and finds that actual knowledge is adequate evidence of bad faith under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). The Panel agrees and finds Respondent had actual knowledge of Complainant’s rights in the mark and thus registered the domain name in bad faith.
Thirdly, 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 name using the SNAPCHAT mark and in view of the conduct that Respondent has engaged in when using the domain name, Respondent registered and used it 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 <snapchatpremiumamyamos.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Panelist
Dated June 26, 2020
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