Snap Inc. v. Rosca Ionut
Claim Number: FA2212002023094
Complainant is Snap Inc. (“Complainant”), represented by Dennis L. Wilson of Kilpatrick Townsend & Stockton LLP, USA. Respondent is Rosca Ionut (“Respondent”), RO.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <snapscore.me>, registered with GoDaddy.com, LLC.
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 Forum electronically on December 7, 2022; Forum received payment on December 7, 2022.
On December 9, 2022, GoDaddy.com, LLC confirmed by e-mail to Forum that the <snapscore.me> domain name (the Domain Name) is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 13, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint setting a deadline of January 3, 2023 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@snapscore.me. Also on December 13, 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.
On January 5, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Charles A. Kuechenmeister 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 a Response from Respondent.
Complainant requests that the Domain Name be transferred from Respondent to Complainant.
A. Complainant
Complainant owns and distributes the popular SNAPCHAT camera and messaging application and storytelling platform which allows users to share photographs, videos, and messages called “Snaps” with others via mobile devices. It has rights in the SNAP mark based upon its registration of that mark with the United States Patent and Trademark Office (“USPTO”). The <snapscore.me> Domain Name is confusingly similar to Complainant’s Snap mark because it incorporates the SNAP mark in its entirety, merely adding the descriptive term “score” and the country code top level domain (“ccTLD”) “.me”.
Respondent has no rights or legitimate interests in the Domain Name. It has no relationship with Complainant and is not commonly known by the Domain Name. Respondent is not using the Domain Name in connection with a bona fide offering of goods and services or for a legitimate or fair use but instead purports to offer users a means of hacking into the accounts of Complainant’s customers but is actually engaged in a phishing scheme.
Respondent registered and uses the Domain Name in bad faith. It resolves to a website that promotes a hacking tool but is actually used in connection with a phishing scheme. Additionally, Respondent had actual knowledge of Complainant’s rights in the Snap marks when it acquired the Domain Name.
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 and is being used in bad faith.
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. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO 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”).
The Panel finds as follows with respect to the matters at issue in this proceeding:
The SNAP mark was registered to Complainant, formerly known as Snapchat, Inc., (Reg. No. 4,925,206) on March 29, 2016 (USPTO registration certificate included in Complaint Annex S, USPTO printout evidencing corporate name change of Complainant submitted as Complaint Annex T). Complainant’s registration of its mark with the USPTO establishes its rights in that mark for the purposes of Policy ¶ 4(a)(i). DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <snapscore.me> Domain Name is confusingly similar to Complainant’s SNAP mark. It fully incorporates the mark, merely adding the descriptive term “score” and the ccTLD “.me”. These changes do not distinguish the Domain Name from Complainant’s mark for the purposes of Policy ¶ 4(a)(i). Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”), Thomson Reuters Global Resources v Matthew Krawitz, FA 1548336 (Forum Apr. 21, 2014) (“Respondent adds the country-code top-level domain (“ccTLD”) “.co” to Complainant’s mark in the disputed domain name, which also fails to distinguish the domain name from Complainant’s mark… Accordingly, the Panel finds that Respondent’s <rueters.co> domain name is confusingly similar to Complainant’s REUTERS mark.”). 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 changes described above, Complainant’s mark is clearly recognizable within the Domain Name, and this establishes its confusing similarity to Complainant’s mark for the purposes of Policy ¶ 4(a)(i).
For the reasons set forth above, the Panel finds that the Domain Name is identical or confusingly similar to the SNAP 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 the 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 three 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) before any notice to respondent of the dispute, respondent has used or has made 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; or
(ii) respondent (as an individual, business or other organization) has been commonly known by the domain name, 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 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) it has no relationship with Complainant, (ii) it is not commonly known by the Domain Name, and (iii) Respondent is not using the Domain Name in connection with a bona fide offering of goods and services or for a legitimate or fair use but instead purports to offer users a means of hacking into the accounts of Complainant’s customers but is actually engaged in a phishing scheme.
Complainant states that Respondent has no relationship with Complainant. 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 information furnished to the FORUM by the registrar lists the registrant of the Domain Name as “Rosca Ionut.” 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 or similar evidence, however, UDRP panels have consistently held that a registrant name that is materially different from the domain name at issue is competent evidence that the respondent is not commonly known by the domain name. Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the <guardair.com> domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name). There is no evidence before the Panel in this case to suggest that Respondent has been commonly known by the Domain Name and the Panel finds that it has not been so known. The Panel fids that respondent has not been commonly known by the Domain Name
Complaint Annexes V and W contain screenshots of pages of the website resolving from the Domain Name. These pages are written in French but Complainant has provided English translations in the Complaint. The first page prominently features the message “Pirate Un Compte Snapchat,” which translates to “Hack a Snapchat Account.” It also prominently features a color similar to the “Snapchat yellow” color associated with Complainant’s websites as shown on Complaint Annex D. The print copy on Respondent’s web site offers an online tool to hack the Snapchat accounts of Complainant’s customers. If a visitor accepts the invitation he or she is directed to a landing page that states that the website has collected a number of photos and videos but then advises the visitor that it was not able to obtain a necessary password and asks the visitor to verify that “you are human to prevent bot abuse.”
Respondent’s site is flagged by Google Chrome as a dangerous site on which ”attackers might be trying to steal your information . . . (for example, passwords, messages, or credit cards)” (screenshot of the Google flag submitted as Complaint Annex U). Because of this, Complainant was not able to access Respondent’s site further. Complainant states on information and belief that Respondent’s site does not in fact have a hacking tool to offer but instead is designed and intended to lure people looking for one to its site for the purpose of obtaining sensitive information from them or to take advertising surveys to generate advertising revenues for Respondent. The most persuasive support for Complainant’s allegation of phishing is the Google Chrome flag referenced above. It, together with Complainant’s informed speculation, raises substantial concern that Respondent could be using the Domain Name for a phishing scheme, but the fact remains that there is no direct or conclusive evidence of this matter before the Panel. The evidence of phishing is inconclusive at best. Phishing is not proven.
What is clear, however, is that Respondent appears at a minimum to offer a service that enables its customers unlawfully to gain access to the accounts of Complainant’s customers. This is patently unlawful and cannot qualify as either a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use within the meaning of Policy ¶ 4(c)(iii)”). SNAP Inc. v. Contact Privacy Inc. Customer 0146764045, et al., D2017-0635 (WIPO May 29, 2017) (finding no legitimate or bona fide use of domains in connection with hacking services), Star Stable Entertainment AB v. WhoisGuard Protected, WhoisGuard Inc. / Federico James, D2016-1427 (WIPO Aug. 31, 2016) (finding that unauthorized hacking is by its nature an illegitimate activity), Microsoft Corp. v. Webmasterz Entertainment, FA 1266932 (FORUM Aug. 5, 2009) (determining that there was no bona fide offering, or legitimate use, when the domain name at issue was being used to hack into the accounts and services of the complainant and complainant’s customers).
Complainant has made its prima facie case. On the evidence presented, and in the absence of any evidence from Respondent, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name.
(i) 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 respondent’s documented out-of-pocket costs directly related to the domain name;
(ii) 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, provided that respondent has engaged in a pattern of such conduct;
(iii) respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, Internet users to 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 respondent’s web site or location or of a product of service on respondent’s web site or location.
The evidence of Respondent’s use of the Domain Name set forth above in the rights or legitimate interests analysis also supports a finding of bad faith use and registration of that domain, based upon the foregoing grounds articulated in the Policy and upon additional grounds adopted by UDRP panels over the years. First, Respondent is clearly using the confusingly similar Domain Name to attract Internet users to its website by creating confusion as to the source, sponsorship, endorsement or affiliation of its website by Complainant, and advertises tools to gain unlawful access to the accounts of Complainant’s customers. The evidence does not disclose whether Respondent actually provides the tools advertised or fraudulently represents that it does, collecting money from the customer and then not delivering them, or obtaining sensitive personal information from them. Under either scenario, however, Respondent’s conduct fits squarely within the circumstances described in Policy ¶ 4(b)(iv) and is manifest evidence of bad faith registration and use. Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”).
Moreover, the fact that this conduct is unlawful has also been held, in and of itself, to evidence bad faith registration and use. This does not fit within any of the circumstances described in Policy ¶ 4(b) but that paragraph 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 non-exclusive nature of Policy ¶ 4(b) allows for consideration of additional factors in an analysis for bad faith, and using a confusingly similar domain name for unlawful purposes is evidence of bad faith. Autodesk Inc. v. Telecom Tech Corp, WIPO Case No. D2011-1670 (January 30, 2011) (“A respondent’s use of a disputed domain name to pursue an illegal activity automatically qualifies that domain as having been registered and used in bad faith.”), Cameron Thomaz P/K/A Wiz Khalifa and Wize Khalifa Trademark, LLC v. Kyle Lynch, WIPO Case No. 2014-1525 (November 4, 2014) (finding bad faith registration and use where respondent’s webpages offered illegal downloads of complainant’s music.).
Finally, it is evident that Respondent had actual knowledge of Complainant’s SNAPCHAT mark in December 2021, when, according to the WHOIS report submitted as Complaint Annex A, it acquired the Domain Name. Complainant’s mark and business are famous world-wide (articles evidencing popularity of Snapchat submitted as Complaint Annex Q). More importantly, the hacking services advertised on Respondent’s web site directly and explicitly target Complainant. There is no question that Respondent knew of Complainant and its mark when it acquired the Domain Name. Given the non-exclusive nature of Policy ¶ 4(b), 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), 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.”).
For the reasons set forth above, the Panel finds that Respondent registered and is using the Domain Name in bad faith within the meaning of Policy ¶ 4(a)(iii).
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 <snapscore.me> Domain Name be TRANSFERRED from Respondent to Complainant.
Charles A. Kuechenmeister, Panelist
January 8, 2023
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