Snap Inc. v. Danny Lucas
Claim Number: FA2209002012905
Complainant is Snap Inc. (“Complainant”), represented by Emily A. DeBow of Kilpatrick Townsend & Stockton LLP, California. Respondent is Danny Lucas (“Respondent”), California.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kinkysnaps.com>, registered with NameCheap, Inc..
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on September 20, 2022; Forum received payment on September 20, 2022.
On September 21, 2022, NameCheap, Inc. confirmed by e-mail to Forum that the <kinkysnaps.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 September 26, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 17, 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@kinkysnaps.com. Also on September 26, 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, Forum transmitted to the parties a Notification of Respondent Default. Respondent did however send emails to the Forum, see below.
On October 27, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 states that 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. Since its launch in 2011, the Snapchat App has been one of the fastest growing and most popular smartphone applications in the world. The Snapchat App was declared the “Fastest Rising Startup” at the 2012 TechCrunch Crunchies Awards, and “Best Mobile Application” at the 2013 TechCrunch Crunchies Awards. By February 2014, a study concluded that 77% of U.S. college students use the Snapchat App at least once per day. By the end of 2014, the Snapchat App had 70 million daily active users, and by the end of 2015, the app had over 100 million daily active users. From December 2015 to December 2016, there was a 68% increase in Snapchat App users to 158 million daily active users. Those users – each day – on average visited the Snapchat App more than 18 times, spent an average of 25-30 minutes on the app, and sent over 2.5 billion Snaps. During this period, the Snapchat App also consistently ranked among the Apple App Store’s top five most downloaded photo applications and top 15 most downloaded mobile applications overall. In 2016, the Snapchat App was recognized as the most-downloaded app in the Apple App Store. The Snapchat App was the also the 4th most downloaded app in the Apple App Store in 2021. 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 top ten most downloaded iOS apps for the last six consecutive years, from 2016-2021, including being the world's most downloaded iOS app in 2016. As of the end of the second quarter of 2022, Snapchat had, on average, 347 million daily active users. Complainant asserts rights in the SNAP mark based upon its registration in the United States in 2013. The mark is registered elsewhere around the world and it is famous.
Complainant alleges that the disputed domain name is confusingly similar to its SNAP mark because it consists of Complainant’s mark in its entirety, merely adding the term “kinky,” the letter “s,” and the generic top-level domain (“gTLD”) “.com”. 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 licensed or authorized to use Complainant’s SNAP mark and is not commonly known by the disputed domain name. Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to host adult-oriented content. Clicking on the “Send Direct Message” button (which displays Complainant’s distinctive logo) temporarily redirects users through multiple landing pages before resolving to an unrelated subscription-based pornographic website. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses disputed domain name in bad faith. Respondent uses the disputed domain name to redirect users to an unrelated site for commercial benefit: specifically, the unrelated site prompts users to sign up for an account in exchange for referral fees or other commercial incentives. Respondent uses the disputed domain name to host adult-oriented content. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the SNAP mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding. In its emails to the Forum, Respondent states, in pertinent part: “I have nothing to do with this domain. Years ago I was employed as a server admin but never owned the domain or profited from it. I have passed this info along to the owner and was told the site had been removed and is no long online.”
And: “I was asked to pass this along by the domain owner for the panels review: Of the 3 requirements this is not met: The domain name has been registered and the domain name is being used in ‘bad faith’.
====> The domain in question is not being used, there is no active site on the domain, the URL is not generating revenue in anyway and the domain itself is not set to autorenew and will expire.”
Complainant has rights in the mark SNAP and uses it to provide a camera and messaging application and storytelling platform.
Complainant’s rights in its mark date back to at least 2013.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name was used to host adult-oriented content; and the resolving website featured a “Send Direct Message” button (which displayed Complainant’s distinctive logo) which redirected users to an unrelated subscription-based pornographic website.
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”).
In its emails to the Forum, Respondent contests the third element of the Policy, but not the first two elements. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, and also for the reasons given below, the Panel finds that Complainant has satisfied its burden of proof for this element of the Policy.
Indeed, the disputed domain name incorporates Complainant’s SNAP mark in its entirety, merely adding the term “kinky,” the letter “s,” and the generic top-level domain (“gTLD”) “.com”. The addition of generic or descriptive terms, the letter “s”, and gTLDs to a mark does not distinguish the disputed domain name from the mark incorporated therein per Policy ¶ 4(a)(i). See Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Snap Inc. v. michael smith, FA2004001894441 (Forum, May 27, 2020) (finding <baesnaps.com> confusingly similar to the SNAP mark); see also LodgeWorks Partners, L.P. v. Isaac Goldstein / POSTE RESTANTE, FA 1717300 (Forum Apr. 5, 2017) (“The Panel agrees; Respondent’s <archerhotels.com> is confusingly similar to complainant’s ARCHER HOTEL mark.”).
For all the reasons given above, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
In its emails to the Forum, Respondent contests the third element of the Policy, but not the first two elements. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, and also for the reasons given below, the Panel finds that Complainant has satisfied its burden of proof for this element of the Policy.
Indeed, Respondent is not licensed or otherwise authorized to use Complainant’s SNAP mark. Respondent is not commonly known by the disputed domain name. Under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. 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)). Here, the WHOIS information for the disputed domain name lists the registrant as “Danny Lucas”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant presents evidence showing that the disputed domain name was used to host adult-oriented content; and that the resolving website featured a “Send Direct Message” button (which displayed Complainant’s distinctive logo) which redirected users to an unrelated subscription-based pornographic website. Such use of a disputed domain name is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Karen Koehler v. Hiroshi Ishiura/ Lifestyle Design Inc., FA1730673 (Forum June 1, 2017) (holding that “Respondent is not using the disputed domain name for any bona fide offering of goods or services or a legitimate non-commercial fair use because Respondent uses the domain name to host a pornographic website.”); see also Snap Inc. v. Michael Smith, FA2004001894441 (Forum May 27, 2020) (finding respondent’s use of <baesnaps.com> to resolve to an adult oriented website cannot constitute a bona fide use); see also Snap, Inc. v. View Bird, FA1709001749823 (Forum Oct. 30, 2017) (finding use of <hiddensnapchat.org> in connection with pornography not a bona fide offering of goods or services or a legitimate noncommercial or fair use); see also Snap, Inc. v. Peter Vagin / Chubbs Media, FA1805001788597 (Forum June 28, 2018) (finding no legitimate noncommercial or fair use where <snapfuck.me> was used in connection with a commercial online adult dating network for commercial gain); see also Snap, Inc. v. Nestor Hernandez, F1709001749325 (Forum October 25, 2017) (finding no bona fide offering of goods or services or a legitimate noncommercial or fair use where respondent used the <adultsnapchat.com> domain name to redirect traffic to the commercial porn site <snapsext.com> in exchange for referral fees or other commercial incentives); see also Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Forum June 24, 2002) (holding that the respondent’s use of the disputed domain name to redirect internet users to commercial websites did not evidence rights or legitimate interests in the domain name). Therefore the Panel finds that Respondent fails to use the disputed domain names to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).
And, for all the above reasons, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
In its emails to the Forum, Respondent states that the disputed domain name is no longer being used. It does not explicitly dispute Complainant’s allegations regarding how the disputed domain name had been used.
According to paragraph 4.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”), a Panel may conduct limited factual research regarding disputed domain names:
Noting in particular the general powers of a panel articulated inter alia in paragraphs 10 and 12 of the UDRP Rules, it has been accepted that a panel may undertake limited factual research into matters of public record if it would consider such information useful to assessing the case merits and reaching a decision.
This may include visiting the website linked to the disputed domain name in order to obtain more information about the respondent or its use of the domain name, consulting historical resources such as the Internet Archive (www.archive.org) in order to obtain an indication of how a domain name may have been used in the relevant past, reviewing dictionaries or encyclopedias (e.g., Wikipedia), or accessing trademark registration databases.
A search in the Internet Archive indicates that the disputed domain did resolve to an adult-oriented site, as alleged by Complainant, as late as August 11, 2022. Thus the Panel finds that Complainant has satisfied its burden of proving how the disputed domain name had been used.
Indeed, as already noted, Complainant presents evidence showing that the disputed domain name was used to host adult-oriented content; and that the resolving website featured a “Send Direct Message” button (which displayed Complainant’s distinctive logo) which redirected users to an unrelated subscription-based pornographic website. This is evidence of bad faith registration and used under under Policy ¶¶ 4(b) (iii) and (iv). 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 Snap Inc. v. Dan Premium, FA2102001931133 (Forum, Mar. 25, 2021) (finding respondent’s use of <premiumsnap.org> and <premiumsnao.biz> to offer users the ability to purchase pornographic materials was bad faith under the Policy); see also AbbVie, Inc. v. innika Rahman / Innika, FA1912001873693 (Forum Dec. 30, 2019) (use of Complainant’s HUMIRA mark in <humira.surf> domain name to redirect Internet users to a third-party website containing adult-oriented material constituted bad faith). Therefore the Panel finds that Respondent registered and used the disputed domain name in bad faith per Policy ¶¶ 4(a)(iii) and (iv).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website displayed Complainant’s distinctive logo. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also 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.”); 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). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under 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 <kinkysnaps.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: October 27, 2022
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