Snap Inc. v. Rokib Hasan
Claim Number: FA2212002024988
Complainant is Snap Inc. (“Complainant”), represented by Emily A. DeBow of Kilpatrick Townsend & Stockton LLP, California. Respondent is Rokib Hasan (“Respondent”), Bangladesh.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <snap2chat.plus>, 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 December 21, 2022; Forum received payment on December 21, 2022.
On Dec 22, 2022, NameCheap, Inc. confirmed by e-mail to Forum that the <snap2chat.plus> 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 December 27, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 17, 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@snap2chat.plus. Also on December 27, 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 19, 2023, 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 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 SNAPCHAT mark based on registration of the mark in the United States in 2013. The mark is famous.
Complainant alleges that the disputed domain name is confusingly similar to its SNAPCHAT mark because it merely adds the number “2” to the mark, in addition to the “.plus” generic top level domain (“gTLD”).
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. Respondent does not use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead the disputed domain name is redirected to various adult-oriented websites, one of which displays Complainant’s mark and distinctive logo. Respondent’s use of the disputed domain name also violates Complainant’s terms of service.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent uses the disputed domain name to divert users to adult-oriented websites 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 SNAPCHAT mark based on the fame of the mark and Respondent’s use of Complainant’s logo.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark SNAPCHAT 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 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name is redirected to adult-oriented web pages, one of which displays Complainant’s mark and distinctive logo.
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”).
The disputed domain name merely adds the number “2” to Complainant’s SNAPCHAT mark, in addition to the “.plus” generic top level domain (“gTLD”). Under Policy ¶ 4(a)(i), adding a number along with a gTLD is insufficient in differentiating from the mark. See 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.”); see also Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) (“The domain name contains the mark in its entirety, with only the addition of the generic letters ‘sb’ and the digits ‘2018,’ plus the generic Top Level Domain (“gTLD”) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”); see also, Woot v. 猩猩, FA2208002007177 (Forum Sept. 6, 2022) (“The Panel notes that the disputed domain names incorporate Complainant's WOOT mark in their entireties and add numbers 11, 12, 13, 15, 16, 18, 19, 26, 33, 55, 58, 63, 66, 77, 87, 88 and 99 respectively. Therefore, the Panel finds that each of the disputed domain names is confusingly similar to Complainant's mark per Policy ¶ 4(a)(i)”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its SNAPCHAT mark in any way. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name. See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”). Here, the WHOIS information of record identifies the registrant as “Rokib Hasan”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The disputed domain name is redirected to various adult-oriented web pages. Under Policy ¶¶ 4(c)(i) and (iii), using a domain name to redirect users to a page hosting adult-oriented content is not a bona fide offering of goods or services, nor any noncommercial or fair use. See Am. Online, Inc. v. Boch, FA 209902 (Forum Dec. 22, 2003) (“Respondent uses <aol-x.com> in connection with [adult-oriented] material, which is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use of the domain name, pursuant to Policy ¶¶ 4(c)(i) [and] (iii).”); see also Altria Group, Inc. and Altria Group Distribution Company v. xiazihong, FA1732665 (Forum July 7, 2017) (holding that “[u]se of a domain name to display adult-oriented images is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy.”). The Panel therefore finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services, or a noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. 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, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the disputed domain name is redirected to adult-oriented web pages. Under the Policy, using a domain name to redirect users to an adult-oriented webpage is evidence of bad faith registration and use. See Gen. Media Commc’ns, Inc. v. Vine Ent., FA 96554 (Forum Mar. 26, 2001) (finding bad faith where a competitor of the complainant registered and used a domain name confusingly similar to the complainant’s PENTHOUSE mark to host a pornographic web site); see also Land O' Lakes Inc. v. Offbeat Media Inc., FA 96451 (Forum Feb. 23, 2001) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent utilized a domain name confusingly similar to the complainant’s mark and used a confusingly similar adult-oriented depiction of the complainant’s registered trademark on its website to cause confusion as to the source or affiliation of the site); see also 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).”). Thus the Panel finds bad faith registration and use under Policy ¶ 4(a)(iii).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: one of the resolving web pages displays Complainant’s mark and 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 registration and use 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 <snap2chat.plus> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: January 19, 2023
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