Snap Inc. v. Riley Lawson / Noah Denney
Claim Number: FA2211002021344
Complainant is Snap Inc. (“Complainant”), represented by Emily A. DeBow of Kilpatrick, Townsend & Stockton LLP, California, USA. Respondents are Riley Lawson, Great Britain and Noah Denney, France (“Respondents”).
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <snapchat.games>, registered with 123-reg.co.uk; <snapchat.rip> and <snapchat.vg>, both registered with Key-Systems GmbH.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to Forum electronically on November 22, 2022. Forum received payment on November 22, 2022.
On November 24, 2022, GoDaddy (on behalf of 123-reg.co.uk) and Key-Systems GmbH confirmed by e-mail to Forum that the <snapchat.games>, <snapchat.rip>, and <snapchat.vg> domain names are registered with 123-reg.co.uk and Key-Systems GmbH and that Respondents are the current registrants of the names. GoDaddy and Key-Systems GmbH have verified that Respondents are bound by the 123-reg.co.uk and Key-Systems GmbH registration agreements, both being in English, and have 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, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 22, 2022 by which Respondents could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondents’ registrations as technical, administrative, and billing contacts, and to postmaster@snapchat.games, postmaster@snapchat.rip and postmaster@snapchat.vg. Also on December 2, 2022, the Written Notice of the Complaint, notifying Respondents of the e-mail addresses served and the deadline for a Response, was transmitted to Respondents via post and fax, to all entities and persons listed on Respondents’ registrations as technical, administrative and billing contacts.
Having received no response from Respondents, Forum transmitted to the parties a Notification of Respondent Default.
On December 27, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury 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 Respondents.
Complainant requests that the domain names be transferred from Respondents to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
Paragraph 3(c) of the Rules provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder”. Paragraph 1(d) of Forum's Supplemental Rules defines “The Holder of a Domain Name Registration” as “the single person or entity listed in the registration information, as verified by the Registrar, at the time of commencement” and sub-paragraph 1(d)(i) provides that a Complainant wishing to make an argument for a single Respondent having multiple aliases must comply with Supplemental Rules 4(c) and 17(a)(i).
Complainant contends that the <snapchat.games>, <snapchat.rip> and <snapchat.vg> domain names are effectively controlled by the same person and/or entity, which is operating under several aliases. Complainant asserts that each of the registrant contact email addresses for the domain names appear to use the browser add-on MaskMe to generate unique disposable email addresses; the domain names resolve to websites which incorporate the Complainant’s marks to impersonate or enable others to impersonate Complainant vis-ŕ-vis the auto-population of SNAPCHAT-formative email addresses by which to contact third-parties; all three domains use the same post-action server proxy Cloudflare.com and two of the three domain names use Key-Systems, GMBH as the registrar. Finally, all three domain names have a common structure, adding a gTLD or ccTLD after the SNAPCHAT mark.
In the absence of any evidence to the contrary, and although the Complaint provides no evidence that the <snapchat.games> domain name resolves to a website, the above circumstances demonstrate sufficient commonality as between the domain names to satisfy the Panel that they are commonly owned or controlled by a single person who is using multiple aliases. Henceforth this decision will refer to Riley Lawson and Noah Denney as “Respondent”.
A. Complainant
Complainant owns and distributes the enormously popular SNAPCHAT camera and messaging application and storytelling platform that, among other things, allows users to share with others photographs, videos, and messages called “Snaps” via mobile devices. Complainant has rights in the SNAPCHAT mark based upon many registrations, including with the United States Patent and Trademark Office (“USPTO”). The <snapchat.games>, <snapchat.rip> and <snapchat.vg> domain names are confusingly similar to Complainant’s SNAPCHAT mark.
Respondent has no rights or legitimate interests in the domain names. Respondent is not commonly known by the <snapchat.games>, <snapchat.rip> or <snapchat.vg> domain names. Respondent is not using the domain names in connection with any bona fide offering of goods and services nor for any legitimate or fair use. Instead, the domain names resolve to a website offering a tool which has no other purpose than to allow Respondent or third parties to impersonate Complainant, likely to phish confidential Snapchat user information.
Respondent registered the <snapchat.games>, <snapchat.rip> and <snapchat.vg> domain names in bad faith with actual knowledge of Complainant’s rights in the SNAPCHAT mark prior to registration of the domain names and uses them in bad faith to impersonate or enable third parties to impersonate Complainant and perpetrate phishing schemes.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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 shown that it has rights in the SNAPCHAT mark based upon numerous registrations in many countries, including with the USPTO (e.g. Reg. No. 800,506, registered July 30, 2013). The Panel finds each of Respondent’s <snapchat.games>, <snapchat.rip> and <snapchat.vg> domain names to be identical to Complainant’s SNAPCHAT mark because they each comprise the entirety of Complainant’s mark. The inconsequential generic and country code top-level domains “.games”, “.rip” and “.vg” may be ignored.
Complainant has established this element.
Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in the domain names for purposes of paragraph 4(a)(ii) of the Policy, i.e.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain names or names corresponding to the domain names in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain names, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain names, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The domain names were registered as follows: <snapchat.rip> on July 18, 2020; <snapchat.vg> on October 3, 2021 and <snapchat.games> on December 17, 2021, in each case many years after Complainant has shown that its SNAPCHAT mark had become famous worldwide.
Prior to a cease-and-desist letter from Complainant’s representative on March 22, 2022, the <snapchat.rip> and <snapchat.vg> domain names resolved to websites identical in appearance, offering a tool enabling users to impersonate Complainant, while prominently displaying Complainant’s International figurative trademark consisting of the shape of a ghost, (Reg. No. 1 324 110, registered on June 30, 2016). Following the cease-and-desist letter, the ghost logo mark was removed from those websites, which otherwise remained unchanged.
There is no evidence that the <snapchat.games> domain name has ever resolved to an active website, although that domain name was displayed on the <snapchat.rip> website in June, 2022.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of each of the domain names on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <snapchat.games>, <snapchat.rip> and <snapchat.vg> domain names. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain names.
Complainant has established this element.
Registration and Use in Bad Faith
The four illustrative circumstances set out in paragraph 4(b) of the Policy as evidence of the registration and use of a domain name in bad faith for purposes of paragraph 4(a)(iii) are not exclusive.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s famous SNAPCHAT mark when Respondent registered the <snapchat.games>, <snapchat.rip> and <snapchat.vg> domain names.
As to the <snapchat.rip> and <snapchat.vg> domain names, the Panel is satisfied that Respondent is using the domain names to impersonate or enable third parties to impersonate Complainant and perpetrate phishing schemes. This demonstrates registration and use of the <snapchat.rip> and <snapchat.vg> domain names in bad faith.
Although there is no evidence that the <snapchat.games> domain name resolves to an active website, Section 3.3 of the WIPO Jurisprudential Overview 3.0 provides:
“From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or “coming soon” page) would not prevent a finding of bad faith under the doctrine of passive holding.
While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put.”
In the present case Complainant’s SNAPCHAT mark is famous and Respondent’s <snapchat.games> domain name is a blatant attempt to take advantage of the goodwill and reputation of Complainant’s SNAPCHAT mark. Respondent has failed to contest any of Complainant’s assertions and has not provided any evidence of actual or contemplated good-faith use. Finally, there is no plausible good faith use to which the <snapchat.games> domain name may be put. See Telstra Corporation Limited v. Nuclear Marshmallows, D2000-0003 (WIPO February 18, 2000).
Under these circumstances the Panel finds Respondent registered and is using the <snapchat.games> domain name in bad faith.
Complainant has established this element in relation to each of the domain names.
DECISION
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 <snapchat.games>, <snapchat.rip> and <snapchat.vg> domain names be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: December 29, 2022.
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