Snap Inc. v. NESHT drugp
Claim Number: FA2007001903045
Complainant is Snap Inc. (“Complainant”), represented by Emily A. DeBow of Kilpatrick Townsend & Stockton LLP, California, United States. Respondent is NESHT drugp (“Respondent”), Bulgaria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <thepremiumsnapchat.com>, registered with GoDaddy.com, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 6, 2020; the Forum received payment on July 6, 2020.
On July 7, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <thepremiumsnapchat.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 July 8, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 28, 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@thepremiumsnapchat.com. Also on July 8, 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 July 30, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant, Snap Inc., is a tech company that owns and distributes the SNAPCHAT camera and messaging application.
Complainant asserts rights in the SNAPCHAT mark through its registration of the mark with multiple trademark agencies, including the United States Patent and Trademark Office (“USPTO”).
Respondent’s <thepremiumsnapchat.com> domain name is confusingly similar to Complainant’s mark, as it incorporates the SNAPCHAT mark in its entirety, merely adding the terms “the” and “premium” along with the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <thepremiumsnapchat.com> domain name. Respondent is not commonly known by the at-issue domain name, nor has Complainant authorized Respondent to use the SNAPCHAT mark. Additionally, Respondent fails to use the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the domain name to drive internet users to a commercial website displaying adult-oriented content and offering for-pay access to a Snapchat account, which violates Complainant’s Terms of Service.
Respondent registered and uses the <thepremiumsnapchat.com> domain name in bad faith. Respondent uses the domain name to divert internet traffic to adult-oriented content for Respondent’s financial gain. In particular, Respondent is using the <thepremiumsnapchat.com> domain name to promote a membership platform where users can pay a fee for access to an adult model’s Snapchat account. Additionally, such use of the at-issue domain name violates Complainant’s Terms of Service. Finally, Respondent had actual knowledge of Complainant’s rights in the SNAPCHAT mark at the time of registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the SNAPCHAT mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the SNAPCHAT trademark.
Respondent uses the at-issue domain name to address a website that offers a platform to monetize a Snapchat account’s 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”).
The at-issue domain name is identical to a trademark in which Complainant has rights.
Complainant’s trademark registration for SNAPCHAT with at least one recognized trademark registrar is conclusive evidence of its rights in a 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)”).
Respondent’s <thepremiumsnapchat.com> domain name contains Complainant’s entire SNAPCHAT trademark prefixed by the term “the premium” and concludes with the top-level domain name “.com.” The differences between Complainant’s SNAPCHAT trademark and Respondent’s at-issue domain name fail to distinguish the domain name from the mark under Policy ¶ 4(a)(i). Therefore, the Panel finds that Respondent’s <thepremiumsnapchat.com> domain name is confusingly similar to Complainant’s SNAPCHAT trademark. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist 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.); see also, 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).).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the <thepremiumsnapchat.com> domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name identifies the registrant of <thepremiumsnapchat.com> as “NESHT DRUGP” and the record before the Panel contains no evidence that otherwise tends to show that Respondent is commonly known by the <thepremiumsnapchat.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Additionally, Respondent uses the confusingly similar <thepremiumsnapchat.com> domain name to address Respondent’s <thepremiumsnapchat.com> website which offers for-pay access to a Snapchat account containing pornographic content. Respondent’s use of the <thepremiumsnapchat.com> to facilitate its own content constitutes neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a non-commercial or fair use under Policy ¶ 4(c)(iii). See Altria Group, Inc. and Altria Group Distribution Company v. xiazihong, FA1732665 (Forum July 7, 2017) (holding that “[u]se of a domain name to display adult-oriented images is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy.”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there is evidence from which the Panel may conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
As mentioned above regarding rights and interests, Respondent uses the at-issue domain name to address a website aimed at capitalizing on the sale of access to a Snapchat account containing adult content. Respondent’s use of the confusingly similar <thepremiumsnapchat.com> domain name in this manner indicates Respondent’s bad faith regarding the at-issue domain name. See Snap Inc. v. Kazi Raihan / Rashel Hossain / refath kanta / MOIN UDDIN, FA2004001890945 (Forum May 11, 2020) (finding use of the infringing domain names to attract Internet users to respondent’s sites for commercial gain in the form of money site visitors paid to access the Snapchat accounts of models participating in the scheme was bad faith registration and use under the Policy ¶ 4(b)(iv));
Additionally, Respondent’s use of the <thepremiumsnapchat.com> domain name to facilitate third parties buying adult-material via Complainant’s SNAPCHAT application also shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iv). See Google Inc. v. Bassano, FA 232958 (Forum Mar. 8, 2004) (holding that the respondent’s use of the <googlesex.info> domain name to intentionally attract Internet users to a website featuring adult-oriented content constituted bad faith registration and use under Policy ¶ 4(b)(iv)).
Finally, Respondent had actual knowledge of Complainant’s rights in the SNAPCHAT mark when it registered <thepremiumsnapchat.com> as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s SNAPCHAT trademark. See Snap Inc. v. Roger Yafushi / Agencia Master, FA1809001806649 (Forum Oct. 11, 2018) (finding the SNAPCHAT mark famous). Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s trademark rights in such domain name further indicates Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, 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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <thepremiumsnapchat.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: July 30, 2020
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page