Snap Inc. v. Stefane Dubart / SD SOCIAL BIZ
Claim Number: FA2104001942260
Complainant is Snap Inc. (“Complainant”), represented by Emily A. DeBow of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Stefane Dubart / SD SOCIAL BIZ (“Respondent”), France.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <snapdecul.com>, registered with NameCheap, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 20, 2021; the Forum received payment on April 20, 2021.
On April 21, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <snapdecul.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 April 26, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 17, 2021 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@snapdecul.com. Also on April 26, 2021, 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.
A timely Response was received and determined to be complete on May 12, 2021.
On May 17, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it owns and distributes the enormously popular SNAPCHAT camera and messaging application, and storytelling platform – available for both the iOS and Android operating systems – that, among other things, allows users to share photographs, videos, and messages called “Snaps” with others via mobile devices (the “Snapchat App”). Complainant’s products empower people to express themselves, live in the moment, learn about the world and have fun together. By February 2017, the Snapchat App had an estimated 79% market share among teenagers and young adults in the United States, giving it the highest reach of social media and networking sites, surpassing Facebook, Instagram, and Twitter. As of September 2017, the Snapchat App had more than 178 million daily active users globally, a 250% increase since 2014, who on average sent an estimated 3.5 billion Snaps every day. By the end of 2017, the number of daily active users of the Snapchat App increased 8.9 million or 5% sequentially to 187 million. According to Apple, the Snapchat App has been among the world's most three most downloaded iOS apps for the last four consecutive years, from 2016- 2019, including being the world's most downloaded iOS app in 2016. As of the end of the fourth quarter of 2020, 265 million people on average used the Snapchat App and created more than 5 billion Snaps each day. Complainant has rights in the SNAP mark based on registration of the mark in the United States in 2013.
Complainant alleges that the disputed domain name is confusingly similar to its mark because it incorporates the mark in its entirety and merely adds the French vulgar term “de cul” (meaning for sex) and the “.com” generic top level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and has no relationship to Complainant. Additionally, Respondent does not use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain to confuse users into believing the domain is affiliated with Complainant and divert users to Respondent’s website where it offers adult-oriented material. Respondent’s use of the disputed domain name also violates Complainant’s terms of service. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. The disputed domain name was registered in 2015. Respondent uses the disputed domain name to divert users to Respondent’s own website where it offers adult-oriented material for commercial gain. Additionally, Respondent’s use of the disputed domain to host adult-oriented material is itself evidence of bad faith. Furthermore, Respondent violates Complainant’s Snapchat App terms of service. Finally, Respondent had actual knowledge of Complainant’s rights in the SNAP mark based on the fame of the mark and Respondent’s use of Complainant’s logos and references to Complainant’s mobile app on the resolving website. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent states, in pertinent part: “If I understood correctly, there is a problem with this snapdecul.com domain name. I bought this domain from another company, which was part of a batch of about fifty domains in 2018. I do not use this domain, only links to landings pages are placed on it. If this domain is a problem for Snap inc, whether they grab it or destroy it, I don't need it, and there is no traffic on it.”
For the reasons set forth below, the Panel will not make any findings of fact.
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.
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."
In the present case, the Panel finds that Respondent has consented to transfer the disputed domain name to Complainant; that is, the parties have both asked for the domain name to be transferred to the Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.
See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
Given the common request of the Parties, it is Ordered that the <snapdecul.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: May 17, 2021
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