DECISION
Snap Inc. v. Nawaf Hariri / Salla Application Company
Claim Number: FA2309002063920
PARTIES
Complainant is Snap Inc. ("Complainant"), represented by Emily A. DeBow of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Nawaf Hariri / Salla Application Company ("Respondent"), Saudi Arabia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <followers-snapchatt.com>, <saudisnapat.com>, <snap-follower.com>, <snapchat000.com>, <snapchat2000.com>, <snapchat500.com>, <snapliix.com>, and <snapmooake.com>, registered with Name.com, Inc.
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.
Charles A. Kuechenmeister, Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to Forum electronically on September 28, 2023; Forum received payment on September 28, 2023.
On September 29, 2023, Name.com, Inc. confirmed by e-mail to Forum that the <followers-snapchatt.com>, <saudisnapat.com>, <snap-follower.com>, <snapchat000.com>, <snapchat2000.com>, <snapchat500.com>, <snapliix.com> and <snapmooake.com> domain names (the "Domain Names") are registered with Name.com, Inc. and that Respondent is the current registrant of the names. Name.com, Inc. has verified that Respondent is bound by the Name.com, 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 October 25, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint setting a deadline of November 14, 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@followers-snapchatt.com, postmaster@saudisnapat.com, postmaster@snap-follower.com, postmaster@snapchat000.com, postmaster@snapchat2000.com, postmaster@snapchat500.com, postmaster@snapliix.com, postmaster@snapmooake.com. Also on October 25, 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.
Having received no Response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.
On November 15, 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.
PRELIMINARY ISSUE: Multiple Domain Names
The Complaint relates to eight Domain Names. 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." For convenience of reference the Domain Names are assigned numbers, as follows:
1. <followers-snapchatt.com>
2. <saudisnapat.com>
3. <snap-follower.com>
4. <snapchat000.com>
5. <snapchat2000.com>
6. <snapchat500.com>
7. <snapliix.com>
8. <snapmooake.com>
The WHOIS information furnished to Forum by the registrars lists Respondent as the registrant of all eight Domain Names. This, in and of itself, demonstrates that all eight Domain Names are registered to the same person or entity or are under common control and the Panel will proceed as to all eight of them.
RELIEF SOUGHT
Complainant requests that the Domain Names be transferred from Respondent to Complainant.
PARTIES' CONTENTIONS
A. Complainant
Complainant owns and distributes the SNAPCHAT camera and messaging application. It has rights in the SNAPCHAT mark through its registration of that mark with multiple national trademark authorities. Respondent's <followers-snapchatt.com>, <saudisnapat.com>, <snap-follower.com>, <snapchat000.com>, <snapchat2000.com>, <snapchat500.com>, <snapliix.com> and <snapmooake.com> Domain Names are identical or confusingly similar to Complainant's mark as they all incorporate the famous SNAPCHAT mark or the dominant SNAP element of it and merely add generic or descriptive terms, hyphens, letters or numbers, as well as the ".com" generic top-level domain.
Respondent has no rights or legitimate interests in the Domain Names. There is no relationship between Complainant and Respondent, and Respondent is not commonly known by the Domain Names. Respondent is not using the Domain Names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses some of them to offer users the ability to buy Snapchat accounts or increase Snapchat scores in exchange for payment, some of them to divert users to a commercial website, and is making no active use of some of them.
Respondent registered and uses the Domain Names in bad faith. It registered all of them with actual knowledge of Complainant's SNAP mark, uses some of them to divert Internet traffic to its websites which offer Snapchat accounts for sale, some of them to divert users to a commercial website, and is making no active use of some of them.
B. Respondent
Respondent did not submit a Response in this proceeding.
FINDINGS
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 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 as true unless the evidence is clearly contradictory. Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent's failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true). Nevertheless, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. 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"), WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Overview 3.0), at ¶ 4.3 ("In cases involving wholly unsupported and conclusory allegations advanced by the complainant, . . . panels may find that—despite a respondent's default—a complainant has failed to prove its case.").
The Panel finds as follows with respect to the matters at issue in this proceeding:
Identical and/or Confusingly Similar
The SNAPCHAT mark was registered to Complainant, formerly known as Snapchat, Inc., with multiple national trademark authorities, including the United States Patent and Trademark Office (USPTO) (Reg. No. 4,375,712 registered July 30, 2013) (USPTO registration certificate included in Complaint Annex Q). Complainant's registration of its mark with that agency is sufficient to establish its rights in the SNAPCHAT mark for the purposes of Policy ¶ 4(a)(i). Alibaba Group Holding Limited v. YINGFENG WANG, FA 1568531 (Forum Aug. 21, 2014) ("Complainant has rights in the ALIBABA mark under the Policy through registration with trademark authorities in numerous countries around the world.")
Respondent's <followers-snapchatt.com>, <saudisnapat.com>, <snap-follower.com>, <snapchat000.com>, <snapchat2000.com>, <snapchat500.com>, <snapliix.com> and <snapmooake.com> Domain Names are identical or confusingly similar to Complainant's SNAPCHAT mark. They all incorporate the famous SNAPCHAT mark or the dominant SNAP element of it and merely add generic or descriptive terms, hyphens, letters or numbers, as well as the ".com" generic top-level domains. These changes do not distinguish the Domain Names from Complainant's mark for the purposes of Policy ¶ 4(a)(i). Maxim Integrated Products v. liao jian jia, FA2059513 (Forum September 22, 2023) ("[the] Domain Name is identical or confusingly similar to Complainant's mark. It fully incorporates the mark, . . . , merely adding a hyphen, the letters "ic," . . ., and a gTLD. These changes do not distinguish the Domain Name from Complainant's mark for the purposes of Policy ¶ 4(a)(i)." ). Snap Inc. v. Dan Premium, FA2102001931133 (Forum, Mar. 25, 2021) (finding the domains and confusingly similar to the SNAPCHAT mark because it contained the dominant portion of the SNAPCHAT mark); MTD Products Inc v J Randall Shank, FA 1783050 (Forum June 27, 2018) ("The disputed domain name is confusingly similar to Complainant's mark as it wholly incorporates the CUB CADET mark before appending the generic terms 'genuine' and 'parts' as well as the '.com' gTLD."). 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 Names.
|
|
|
|
| |||
For the reasons set forth above, the Panel finds that the Domain Names are identical or confusingly similar to the SNAPCHAT mark, in which Complainant has substantial and demonstrated rights.
Rights or Legitimate Interests
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 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 the respondent of the dispute, the 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) the respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or
(iii) the 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 Names because (i) there is no relationship between Complainant and Respondent, (ii) Respondent is not commonly known by the Domain Names, and (iii) Respondent is not using the Domain Names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use but instead is using some of them to offer users the ability to buy Snapchat accounts or increase Snapchat scores in exchange for payment, some of them to divert users to a commercial website, and is making no active use of some of them. These allegations are addressed as follows:
Complainant states that Respondent has no relationship with it. 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 WHOIS information furnished to the Forum by the registrar lists the registrant of all eight Domain Names as "Nawaf Hariri / Salla Application Company." Neither of these names bears any resemblance to any of the Domain Names. 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 evidence, however, UDRP panels have consistently held that WHOIS evidence of a registrant name which does not correspond with the domain name is sufficient to prove 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), Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The Panel is satisfied that Respondent has not been commonly known by the Domain Names.
Complaint Annex U contains screenshots of pages on the website resolving from Domain Name No. 8. These pages display Complainant's ghost logo and a yellow color which is similar to the yellow color utilized by Complainant, both of which have been registered by Complainant with the USPTO (USPTO registration certificate and TSDR printout submitted as Complaint Annexes S and T, respectively). The pages are written entirely in Arabic, however, and for this reason it is not possible for the Panel, who is not familiar with Arabic, to assess the substantive content on them. Complainant alleges that they purport to offer users the ability to buy Snapchat accounts or increase Snapchat scores in exchange for payment, but being unfamiliar with Arabic the Panel was not able to verify this. Complainant has thus failed to prove that Respondent is using Domain Name No. 8 to offer users the ability to buy Snapchat accounts or increase Snapchat scores in exchange for payment. The unauthorized use of the ghost logo and yellow color are not sufficient, without more information, to make out a prima facie case of no rights or legitimate interests as to this Domain Name.
Complaint Annex W contains screenshots of pages of the websites resolving from Domain Names Nos 1, 4, 5, 6, and 7 at one time. As with the Annex U pages, these websites also display Complainant's ghost logo and similar yellow color, but the textual content is, again, written in Arabic. Complainant alleges that they also purport to offer users the ability to buy Snapchat accounts or increase Snapchat scores in exchange for payment, but being unfamiliar with Arabic the Panel was not able to verify this. Complainant has thus failed to prove that Respondent is using these Domain Names to offer users the ability to buy Snapchat accounts or increase Snapchat scores in exchange for payment. The unauthorized use of the ghost logo and yellow color are not sufficient, without more information, to make out a prima facie case of no rights or legitimate interests as to these Domain Names on the basis of Complainant's illegal activity claims.
Complaint Annex V contains screenshots of pages of the websites resolving from Domain Names 1, 2, 4, 5, and 6 at times other than those displayed in Complaint Annexes U and W. On this Annex V, Domain Names 4 and 6 resolve to parked pages containing no substantive content. Respondent is making no active use of these Domain Names but instead is passively holding them. This is neither a bona fide offering of goods or services as contemplated by Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use as contemplated by Policy ¶ 4(c)(iii). Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) ("both Domain Names resolve to a web site that shows the words, 'Not Found, The requested URL / was not found on this server.' Inactive holding of a domain name does not qualify as a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i), or a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii).")
Domain Names 1, 2, and 5 as displayed on Annex V resolve to sites which display hyperlinks such as "Snap Chat," "Free Us Dating Sites," "Free Chat Bot Tools," "Fasteners" and the like. There is no evidence that these links were set up or are being hosted by the registrar. It is evident that Respondent set them up and is using them for its own commercial again. Using a confusingly similar domain name to attract Internet traffic to one's own commercial site is neither a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use within the meaning of Policy ¶ 4(c)(iii). Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum Sept. 30, 2003) ("Respondent's demonstrated intent to divert Internet users seeking complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)"), Vance Int'l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees).
The evidence furnished by Complainant establishes the required prima facie case as to Domain Names 1, 2, 4, 5 and 6. On that evidence, and in the absence of any evidence from Respondent, the Panel finds that Respondent has no rights or legitimate interests in those Domain Names. Complainant has failed to establish the required prima facie case as to Domain Names 3, 7 and 8.
Registration or Use in Bad Faith
Policy ¶ 4(b) sets forth a nonexclusive list of four circumstances, any one of which if proven would be evidence of bad faith use and registration of a domain name. They are as follows:
(i) circumstances indicating that the 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 the respondent's documented out-of-pocket costs directly related to the domain name; or
(ii) the 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 the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the 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 the respondent's web site or location or of a product of service on the respondent's web site or location.
The evidence of Respondent's conduct discussed above in the rights or legitimate interests analysis also supports a finding of bad faith registration and use as to Domain Names 1, 2, 4, 5, and 6, based upon one or more of the foregoing grounds articulated in the Policy and upon additional grounds adopted by UDRP panels over the years. First, Respondent is using the confusingly similar Domain Names 1, 2 and 5 to attract, for commercial gain, Internet users to its web site by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of its website, as described in Policy ¶ 4(b)(iv). Respondent here obtains commercial gain from the hyperlinks to generate pay-per-click revenues. Pay-per-click sites are common on the Internet. Under the most common forms of business arrangements relating to these sites, when a visitor to the site clicks on one of the links which appear there, the site sponsor receives compensation from the various web site owners who are forwarded from the site. In most cases, the site sponsor receives compensation based upon the number of hits the downstream web site owners get from being linked to Respondent's web site. AllianceBernstein LP v. Texas International Property Associates, Case No. D2008-1230 (WIPO, 2008) (the domain name resolved to a search directory site with links to third-party vendors and the panel inferred that the respondent received click-through-fees when site visitors clicked on those links), Brownells, Inc. v. Texas International Property Associates, Case No. D2007-1211 (WIPO, 2007), (finding in similar cases that a respondent intentionally attempted to attract internet searchers for commercial gain). Respondent's use of the Domain Name is commercial also because the sponsors of the various web sites forwarded from Respondent's web site benefit from the subsequent interest and purchases of those who visit the sites. UDRP panels have held that there only needs to be commercial gain sought by some party for the use to be commercial. Focus Do It All Group v. Athanasios Sermbizis, Case No. D2000-0923 (WIPO,2000) (finding that "[I]t is enough that commercial gain is being sought for someone" for a use to be commercial).
Also, as discussed above in the rights and legitimate interests analysis, Respondent is passively holding the Domain Names 4 and 6. As Policy ¶ 4(a)(iii) is written in the conjunctive, a complainant must prove that the respondent not only registered the domain name in bad faith but continues to use it in bad faith as well. Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003. Passively holding a domain name also does not fit within any of the scenarios listed in Policy ¶ 4(b) but given the nonexclusive nature of that paragraph, passively holding a confusingly similar domain name can be evidence of bad faith registration for the purposes of Policy ¶ 4(a)(iii). Caravan Club v. Mrgsale, FA 95314 (Forum Aug. 30, 2000) (finding that the respondent made no use of the domain name or website that connects with the domain name, and that [failure to make an active use] of a domain name permits an inference of registration and use in bad faith). In this case, Respondent's knowledge of Complainant and its SNAPCHAT mark continues after the registration, and it is continuing to use the Domain Name to target Complainant's mark. There is no evidence of any actual or contemplated good faith use of the Domain Name by Respondent use and it is not possible to conceive of any plausible use of the Domain Name by Respondent that would not be illegitimate. Under these circumstances its continued passive holding of the Domain Name is in bad faith. Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.
As also discussed in the rights and legitimate interests analysis, Complainant has not proven the uses Respondent has made of Domain Names 3, 7 and 8. In the absence of this evidence Complainant has not proven bad faith registration or use as to these Domain Names.
For the reasons set forth above, the Panel finds that Respondent registered and is using Domain Names 1, 2, 4, 5 and 6 in bad faith within the meaning of Policy ¶ 4(a)(iii).
DECISION
Complainant having established all three elements required under the ICANN Policy as to the <followers-snapchatt.com>, <saudisnapat.com>, <snapchat000.com>, <snapchat2000.com> and <snapchat500.com> Domain Names, the Panel concludes that relief shall be GRANTED as to those Domain Names.
Complainant having failed to establish all three elements required under the ICANN Policy as to the <snap-follower.com> <snapliix.com> and <snapmooake.com> Domain Names, the Panel concludes that relief shall be DENIED as to those Domain Names.
Accordingly, it is Ordered that the <followers-snapchatt.com>, <saudisnapat.com>, <snapchat000.com>, <snapchat2000.com> and <snapchat500.com> Domain Names be TRANSFERRED from Respondent to Complainant, and that the <snap-follower.com> <snapliix.com> and <snapmooake.com> Domain Names REMAIN WITH Respondent.
Charles A. Kuechenmeister, Panelist
Dated: November 20, 2023
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page