Snap Inc. v. Mykola Yakovetskyi
Claim Number: FA2304002042402
Complainant is Snap Inc. (“Complainant”), represented by Emily A. DeBow of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Mykola Yakovetskyi (“Respondent”), Jersey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <easysnapscore.com>, registered with Google 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on April 28, 2023; Forum received payment on April 28, 2023.
On April 29, 2023, Google LLC confirmed by e-mail to Forum that the <easysnapscore.com> domain name is registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google 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 May 1, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 22, 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@easysnapscore.com. Also on May 1, 2023, 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.
A timely Response was received and determined to be complete on May 19, 2023.
On May 23, 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.
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 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, Snapchat had 375 million daily active users, on average. 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 virtually identical and confusingly similar to Complainant’s SNAP mark because it incorporates the mark in its entirety and merely adds the generic/descriptive terms “easy” and “score” together with the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in its SNAP mark. Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to divert traffic to its own website for commercial gain. Specifically, the resolving website displays Complainant’s mark, refers to Complainant’s services, and offers a service for Snapchat App users to purchase Snapchat accounts or increase their Snapchat scores in exchange for payment. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent registered the disputed domain name in order to divert customers for commercial gain. 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 states, in pertinent part (emphasis added): “I am a 19-year-old Ukrainian resident created a website for fun and since creation date I have not used it almost at all, 0 purchases were made towards my PayPal account linked to the website as it was just a test website. I had no idea about any rules that I should follow and did not think that I would end up with a complaint on my hands. I hope you understand that it was not intentional at all. I can prove and provide any evidence that no transaction was made on that PayPal account if that is the issue?! As soon as I saw complaint on my email, I tried to delete my website as I didn’t use it anyway and thought that I would get rid of it after I saw complaint.”
For the reasons set forth below, the Panel will not make any findings of fact.
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.
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."
The Panel interprets Respondent’s reply as indicating consent to transfer the disputed domain name. Thus, in the present case, the parties have both asked for the domain name to be transferred to the Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.
See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
The Panel notes, obiter dictum, that Complainant presented evidence showing that the resolving website offered a service for Snapchat App users to purchase Snapchat accounts or increase their Snapchat scores in exchange for payment.
The Panel also notes, obiter dictum, that Respondent states that they are a resident of Ukraine, but that the address shown in the WHOIS is “1 Lower Kings Cliff, St Helier, JE2 3GS, Jersey”, which is a UK address; and that the telephone number shown in the WHOIS starts with the country code +44, which is the code for the UK.
Given the common request of the Parties, it is Ordered that the <easysnapscore.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: May 24, 2023
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