Snap Inc. v. cieluck laurent
Claim Number: FA2012001923515
Complainant is Snap Inc. (“Complainant”), represented by Emily A. DeBow of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is cieluck laurent (“Respondent”), France.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <snap2meuf.com> (“Domain Name”), registered with OVH sas.
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.
Nicholas J.T. Smith as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 1, 2020; the Forum received payment on December 1, 2020.
On December 2, 2020, OVH sas confirmed by e-mail to the Forum that the <snap2meuf.com> domain name is registered with OVH sas and that Respondent is the current registrant of the name. OVH sas has verified that Respondent is bound by the OVH sas 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 December 2, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 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@snap2meuf.com. Also on December 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 formal response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On December 28, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Nicholas J.T. Smith 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.
The language of the Registration Agreement in this case is French. The Complaint has been provided in English and Complainant has requested that the language of the proceeding be English.
It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Factors which previous panels have seen as particularly compelling are: WHOIS information which establishes Respondent in a country which would demonstrate familiarity with the English language, filing of a trademark registration with an entity which shows an understanding of the English language, and any evidence (or lack thereof) exhibiting Respondent’s understanding of the language requested by Complainant. See The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (panel exercising discretion in deciding that the language of the proceedings advance in English, contrary to the Registration Agreement, based on evidence that respondent has command of the language). Further, the Panel may weigh the relative time and expense in enforcing the French language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”) and Zappos.com, Inc. v. Zufu aka Huahaotrade, Case No. D2008-1191 (WIPO October 15, 2008) (holding that proceedings could be conducted in English even though the registration agreement was in Chinese where “the disputed domain resolves to a website [that] is exclusively in English, from which can be reasonably presumed that the Respondent has the ability to communicate in English in order to conduct his business over the website in English”).
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. The website to which the Domain Name resolved prior to the commencement of the proceeding (“Respondent’s Website”) contains significant use of English words. The Respondent has made an informal communication to the Center which indicates that it is able to communicate in English. Respondent, in its informal communication, did not request that the proceeding continue in French. After considering the circumstances of the present case, including the material referred to above indicating that the Respondent is clearly able to communicate in English, and noting that the Respondent has not suggested in any way that it wishes to actively participate in the proceeding, the Panel decides that the proceeding should be continued in the English language.
A. Complainant
Complainant owns and distributes the popular Snapchat camera and messaging application and storytelling platform that allows users to share photographs, videos, and messages. Complainant has rights in the SNAP mark based upon the registration with multiple trademark organizations, including the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,345,533, registered June 4, 2013). Respondent’s <snap2meuf.com> domain name is confusingly similar to Complainant’s SNAP mark because it includes the mark, merely adding the number “2,” the French term “meuf” (meaning “girl”) and the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <snap2meuf.com> domain name because Complainant has not authorized Respondent to use the SNAP mark and Respondent is not commonly known by the Domain Name. Respondent does not use the Domain Name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the Respondent’s Website displays adult content and pornography and, for a fee, purports to connect visitors to users of Complainant’s Snapchat service who use their accounts to post pornographic photos. Both the use of Snapchat to share pornography and the sale or purchase of access to Snapchat accounts are in violation of the Snapchat Terms of Service.
Respondent registered and uses the <snap2meuf.com> domain name in bad faith. Respondent takes advantage of Complainant’s SNAP mark to divert Internet traffic for commercial gain. Additionally, Respondent uses the disputed domain name in connection with adult-oriented content. Finally, given the usage of the Domain Name to purport to link to users of Complainant’s Snapchat service, Respondent had actual knowledge of Complainant’s rights in the SNAP mark.
B. Respondent
Respondent failed to submit a formal Response in this proceeding, however on December 4, 2020, it sent an e-mail to the Forum indicating that the Domain Name (as well as any redirection from the Domain Name) had been deactivated.
Complainant holds trademark rights for the SNAP mark. The Domain Name is confusingly similar to Complainant’s SNAP mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the Domain Name and that Respondent registered and has used the Domain Name in bad faith.
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”).
Complainant has rights in the SNAP mark under Policy ¶ 4(a)(i) through its registration of the mark with the USPTO. Registration of a mark with the USPTO is sufficient to establish rights in that mark. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
The Panel finds that the <snap2meuf.com> Domain Name is confusingly similar to the SNAP mark as it fully incorporates the SNAP mark and adds the number “2,” the French term “meuf,” (meaning “girl”) and the “.com” gTLD. The addition of a number or a generic term along with a gTLD to a wholly incorporated trade mark does not distinguish a disputed domain name from a mark. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i)); see also Novartis AG v. boggs, william, FA 1570988 (Forum Aug. 25, 2014) (finding that the <freshlook2.com> domain name was confusingly similar to the complainant’s FRESHLOOK mark because the domain name contained the mark in its entirety and merely added the number “2”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Name. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”). The Panel holds that Complainant has made out a prima facie case.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name as Respondent is not commonly known by the Domain Name, nor has Complainant authorized Respondent to use the SNAP mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). The WHOIS lists “cieluck laurent” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).
The Domain Name is presently inactive but prior to the commencement of a proceeding resolved to the Respondent’s Website[i], a website that contains adult content and advertises a service that allows users to access Snapchat accounts displaying pornography, in breach of Complainant’s terms of service. The use of a domain name containing the SNAP Mark to resolve to a website containing adult oriented material which makes specific reference to Complainant’s Snapchat service is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii). See Snap Inc. v. Arian Demnika, FA 1858543 (Forum Sept. 19, 2019) (finding that respondent lacked rights and legitimate interests in the <isnapbabes.com> domain name which it used to redirect to an adult oriented website); see also Snap Inc. v. Michael Smith, FA 1894441 (Forum May 27, 2020) (finding respondent’s use of <baesnaps.com> to resolve to an adult oriented website cannot constitute a bona fide use of the disputed domain name).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds on the balance of probabilities that, at the date of registration of the Domain Name, June 29, 2017, Respondent had actual knowledge of Complainant’s SNAP mark as the Respondent’s Website makes repeated references to Complainant’s services; indeed its purported business model relies on the exploitation of Complainant’s Snapchat service. In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and uses the Domain Name in bad faith to create confusion with Complainant’s SNAP Mark for commercial gain by using the confusingly similar Domain Name to resolve to a website containing adult-oriented content that exploits Complainant’s Snapchat service. Use of a disputed domain name to host adult oriented content may be evidence of bad faith per Policy ¶ 4(a)(iii). See Molson Canada 2005 v. JEAN LUCAS / DOMCHARME GROUP, FA1412001596702 (Forum Feb. 10, 2015) (“Further, Respondent’s diversion of the domain names to adult-oriented sites is registration and use of the disputed domain names in bad faith under Policy ¶ 4(a)(iii).”); see also Andrey Ternovskiy dba Chatroulette v. Abdelbasset Selmi, FA 1638963 (Forum Oct. 28, 2015) (finding the respondent’s use of the at-issue domain name to resolve to pornographic content indicated the respondent registered and used the <chatroulette.us> domain name in bad faith per Policy ¶ 4(b)(iv)).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <snap2meuf.com> domain name be TRANSFERRED from Respondent to Complainant.
Nicholas J.T. Smith, Panelist
Dated: January 4, 2021
[i] Technically, prior to the commencement of the proceeding, the Domain Name resolved to two different websites, one located at the Domain Name, and (following the sending of a cease and desist letter by Complainant’s representatives), one located at the domain name <meufbonne.com>. The respective websites are essentially identical and for the purpose of this proceeding have been treated as a single website.
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