Snap Inc. v. Alison Markle
Claim Number: FA2202001983827
Complainant is Snap Inc. (“Complainant”), represented by Dennis L. Wilson of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Alison Markle (“Respondent”), Illinois, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <spyonsnapchat.us>, 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.
Charles A. Kuechenmeister, Panelist.
Complainant submitted a Complaint to the Forum electronically on February 9, 2022; the Forum received payment on February 10, 2022.
On February 10, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <spyonsnapchat.us> domain name (the 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 U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On February 16, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint setting a deadline of March 8, 2022 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@spyonsnapchat.us. Also on February 16, 2022, 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 March 12, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Charles A. Kuechenmeister 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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of a Response from Respondent.
Complainant requests that the Domain Name be transferred from Respondent to Complainant.
A. Complainant
Complainant owns and distributes a popular camera and messaging application and storytelling platform. It has rights in the SNAPCHAT mark due to its registration of the mark with multiple trademark agencies around the world. Respondent’s <spyonsnapchat.us> domain name is confusingly similar to Complainant’s SNAPCHAT mark because it incorporates the mark in its entirety, merely adding the generic terms “spy” and “on,” and the “.us” country code top-level domain (“ccTLD”).
Respondent has no rights or legitimate interests in the Domain Name. Respondent is not the owner or beneficiary of a trade or service mark identical to the Domain Name, there is no relationship between Complainant and Respondent, Respondent has not been commonly known by the Domain Name, and Respondent has not used the Domain Name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use because it redirects internet traffic to a web site which offers services that can be used to monitor the accounts of Snapchat customers, and is using the Domain Name to perpetrate a phishing scheme.
Respondent registered and uses the Domain Name in bad faith. It registered the Domain Name with actual knowledge of Complainant’s rights in the SNAPCHAT mark, it is using the Domain Name to attract Internet users to its web site for commercial gain, and is using the Domain Name to operate a phishing scheme.
B. Respondent
Respondent did not submit a Response in this proceeding.
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 a complainant to prove each of the following three elements to obtain an order cancelling or transferring a domain name:
(1) the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(2) the respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision, except where differences in the policies require a different analysis.
In view of Respondent's failure to submit a Response, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules the Panel will decide this administrative proceeding on the basis of Complainant's undisputed representations 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. Nevertheless, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. 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”), WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Overview 3.0), at ¶ 4.3 (“In cases involving wholly unsupported and conclusory allegations advanced by the complainant, . . . panels may find that—despite a respondent’s default—a complainant has failed to prove its case.”).
The Panel finds as follows with respect to the matters at issue in this proceeding:
The SNAPCHAT mark was registered to Complainant with the Canadian Intellectual Property Office (Reg. No. TMA954,928) on November 10, 2016, and with the governmental trademark authorities of numerous other countries as well (certificates of registration included in Complaint Annex R). Complainant’s registration of its mark with these authorities establishes its rights in the SNAPCHAT mark for the purposes of Policy ¶ 4(a)(i). Alibaba Group Holding Limited v. YINGFENG WANG, FA 1568531 (Forum Aug. 21, 2014) (“Complainant has rights in the ALIBABA mark under the Policy through registration with trademark authorities in numerous countries around the world.”).
Respondent’s <spyonsnapchat.us> Domain Name is confusingly similar to Complainant’s SNAPCHAT mark. It incorporates that mark in its entirety, merely adding the generic terms “spy” and “on,” and the “.us” ccTLD. These changes do not distinguish the Domain Name from Complainant’s mark of the purposes of Policy ¶ 4(a)(i). Starbucks Corporation d/b/a Starbucks Coffee Company v. Waseem A Ali / Micron Web Services, FA 1785616 (Forum June 8, 2018) (finding the <starbucksreal.com> domain name to be confusingly similar to the STARBUCKS mark, as “the addition of the generic term ‘real’ to Complainant's mark does not distinguish the Domain Name from Complainant's trade mark pursuant to the Policy.”), Dell Inc. v. Protection of Private Person / Privacy Protection, FA 1681432 (Forum Aug. 1, 2016) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs. Likewise, the absence of spaces must be disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax prohibits them.”). The WIPO Overview 3.0, at ¶ 1.7, states that the test for confusing similarity “typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the domain name.” Notwithstanding the change described above, Complainant’s mark is clearly recognizable within the Domain Name.
For the reasons set forth above, the Panel finds that the Domain Name is identical or confusingly similar to the SNAPCHAT mark, in which Complainant has substantial and demonstrated rights.
If a complainant makes a prima facie case that the respondent lacks rights or legitimate interests in the domain name under Policy ¶ 4(a)(ii), the burden of production shifts to respondent to come forward with evidence that it has rights or legitimate interests in it. 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”). If a respondent fails to come forward with such evidence, the complainant’s prima facie evidence will be sufficient to establish that respondent lacks such rights or legitimate interests. If the respondent does come forward with such evidence, the Panel must assess the evidence in its entirety. At all times, the burden of proof remains on the complainant. WIPO Overview 3.0, at ¶ 2.1.
Policy ¶ 4(c) lists the following four nonexclusive circumstances, any one of which if proven can demonstrate a respondent’s rights or legitimate interests in a domain name for the purposes of Policy ¶ 4(a)(ii):
(i) The respondent is the owner or beneficiary of a trade or service mark that is identical to the domain name;
(ii) Before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;
(iii) The respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or
(iv) The respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name because (i) Respondent is not the owner or beneficiary of any trade or service mark identical to the Domain Name, (ii) there is no relationship between Complainant and Respondent, (iii) Respondent has not been commonly known by the Domain Name, and (iv) Respondent has not used the Domain Name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use because it redirects internet traffic to a web site which offers services that can be used to monitor the accounts of Snapchat customers, and is using the Domain Name to perpetrate a phishing scheme. These allegations are addressed as follows:
To address the Policy ¶ 4(c)(i) element, Complainant alleges that it conducted a search of all jurisdictions with publicly available trademark information which revealed that Respondent owns no trademark registrations. Complainant also alleges that Respondent owns no common law rights in any trade or service mark identical to the Domain Name, based upon the uses that it is making of the Domain Name, as discussed below. These allegations are plausible and are not disputed. The Panel finds that Respondent is not the owner or beneficiary of a trade or service mark identical to the Domain Name.
Complainant states that there is no relationship between it and Respondent. Complainant has specific competence to make this statement, and it is unchallenged by any evidence before the Panel. In the absence of evidence that a respondent is authorized to use a complainant’s mark in a domain name or that a respondent is commonly known by the disputed domain name, the respondent may be presumed to lack rights or legitimate interests in the domain name. IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name), Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) (”Respondent lacks both rights and legitimate interests in respect of the at-issue 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 furnished to the Forum by the registrar lists “Alison Markle” as the registrant of the Domain Name. This name bears no resemblance to the Domain Name. Evidence could, of course, in a given case demonstrate that the respondent is commonly known by a domain name different from the name in which it registered the domain name, e.g., the case of a domain name incorporating the brand name of a specific product offered by and associated with the respondent. In the absence of any such evidence, however, and in cases where no Response has been filed UDRP panels have consistently held that WHOIS evidence of a registrant name which does not correspond with the domain name is sufficient to prove that the respondent is not commonly known by the domain name. Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same), 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). The Panel is satisfied that Respondent has not been commonly known by the Domain Name.
Complaint Annex T consists of screenshots of the web sites resolving from the Domain Name. The first of these, when accessed via Google Chrome, is a warning page that alerts users that the connection is not private and that “attackers may be trying to steal your information from [the Domain Name] (for example passwords, messages, or credit cards).” When accessed using protective software the Domain Name ultimately redirects to a web site called “Snapchat Spy,” which offers various mobile apps which can be used to access and monitor the accounts of Snapchat customers. Respondent’s use of the Domain Name has all the appearances of a pay-per-click program, in which the Respondent receives payment for any referrals to the Snapchat Spy site coming from its Domain Name. The fact that the Domain Name redirects to only one web site does not make this arrangement any less of a pay-per-click program. Using a confusingly similar domain name to attract Internet traffic to a webpage that offers pay-per-click links to goods and services, related and unrelated to a complainant’s business, is neither a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(ii) nor a legitimate noncommercial or fair use within the meaning of Policy ¶ 4(c)(iv). McGuireWoods LLP v. Mykhailo Loginov / Loginov Enterprises d.o.o, FA1412001594837 (Forum Jan. 22, 2015) (“The Panel finds Respondent’s use of the disputed domain names to feature parked hyperlinks containing links in competition with Complainant’s legal services is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), and it is not a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”), Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees), Materia, Inc. v. Michele Dinoia, FA1507001627209 (Forum Aug. 20, 2015) (“The Panel finds that Respondent is using a confusingly similar domain name to redirect users to a webpage with unrelated hyperlinks, that Respondent has no other rights to the domain name, and finds that Respondent is not making a bona fide offering or a legitimate noncommercial or fair use.”).[i]
Complainant alleges that Respondent is using the Domain Name to perpetrate a phishing scheme, which is a fraudulent attempt to obtain sensitive information such as usernames, passwords and credit card details by disguising oneself as a trustworthy entity in an electronic communication. The only evidence of this, however, is the warning page published by Google Chrome, which alerts users that the connection is not private and that attackers might be trying to steal the user’s information from the Domain Name. This raises serious concern but in and of itself does not constitute evidence that phishing is actually occurring. Complainant’s allegations of phishing are not proven.
The other evidence furnished by Complainant, however, establishes the required prima facie case. On that evidence, and in the absence of any evidence from Respondent, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name.
Policy ¶ 4(b) sets forth a nonexclusive list of four circumstances, any one of which if proven would be evidence of bad faith use and registration of a domain name. They are as follows:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant which is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation or endorsement of the respondent’s web site or location or of a product of service on the respondent‘s web site or location.
The evidence of Respondent’s conduct discussed above in the rights or legitimate interests analysis also supports a finding of bad faith registration and use, based upon one or more of the foregoing grounds articulated in the Policy and upon additional grounds adopted by UDRP panels over the years. First, Respondent is using the Domain Name to attract, for commercial gain, Internet users to its web site by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of his web site, as described in Policy ¶ 4(b)(iv). Although Respondent’s site is not a typical pay-per-click site offering a number of links, it appears that Respondent here obtains commercial gain from his use of the Domain Name in much the same way as the sponsors of those sites. The only difference is that his web site redirects traffic to a single web site which relates directly to Complainant’s business. Under the most common forms of business arrangements relating to pay-per-click sites, when a visitor to the site clicks on one of the links which appear there, the site sponsor receives compensation from the various web site owners who are forwarded from the site. In most cases, the site sponsor receives compensation based upon the number of hits the downstream web site owners get from being linked to Respondent’s web site. AllianceBernstein LP v. Texas International Property Associates, Case No. D2008-1230 (WIPO, 2008) (the domain name resolved to a search directory site with links to third-party vendors and the panel inferred that the respondent received click-through-fees when site visitors clicked on those links), Brownells, Inc. v. Texas International Property Associates, Case No. D2007-1211 (WIPO, 2007), (finding in similar cases that a respondent intentionally attempted to attract internet searchers for commercial gain). It appears from Complainant’s undisputed allegations that Respondent here gains some form of remuneration from the entity to whose site Respondent redirects traffic. Respondent’s use of the Domain Name is commercial also because that entity benefits from the traffic forwarded from Respondent’s site. UDRP panels have held that there only needs to be commercial gain sought by some party for the use to be commercial. Focus Do It All Group v. Athanasios Sermbizis, Case No. D2000-0923 (WIPO,2000) (finding that “[I]t is enough that commercial gain is being sought for someone” for a use to be commercial).
Second, it is evident that Respondent had actual knowledge of Complainant and its mark when it registered the Domain Name. Respondent’s entire business scheme depends upon Complainant’s identity and the nature of its business—the Domain Name is designed and intended to attract Internet users who desire to monitor the accounts of Complainant’s customers. This may not fit precisely within any of the circumstances set forth in Policy ¶ 4(b) but Policy ¶ 4(b) recognizes that mischief can assume many different forms and takes an open-ended approach to bad faith, listing some examples without attempting to enumerate all its varieties. Worldcom Exchange, Inc. v. Wei.com, Inc., WIPO Case No. D-2004-0955 (January 5, 2005), Bloomberg Finance L.P. v. Domain Admin - This Domain is For Sale on GoDaddy.com / Trnames Premium Name Services, FA 1714157 (Forum Mar. 8, 2017) (determining that Policy ¶ 4(b) provisions are merely illustrative of bad faith, and that the respondent’s bad faith may be demonstrated by other allegations of bad faith under the totality of the circumstances). The nonexclusive nature of Policy ¶ 4(b) allows for consideration of additional factors in an analysis for bad faith, and registering a confusingly similar domain name with actual knowledge of a complainant’s rights in its mark is evidence of bad faith registration and use for the purposes of Policy ¶ 4(a)(iii). 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).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <spyonsnapchat.us> Domain Name be TRANSFERRED from Respondent to Complainant.
Charles A. Kuechenmeister, Panelist
Dated: March 15, 2022
[i] The cases cited in this section were decided under the Uniform Dispute Resolution Policy (UDRP), which does not include usTLD Policy ¶ 4(c)(i). The usTLD Policy ¶¶ 4(c)(ii), (iii) and (iv) are identical to UDRP Policy ¶¶ 4(c)(i)(ii) and (iii).
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