DECISION

 

Snap Inc. v. Jahanzaib khan / Zhaoliang Meng

Claim Number: FA2409002115153

 

PARTIES

Complainant is Snap Inc. ("Complainant"), represented by Silvia A. Francis-Bongue of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Jahanzaib khan / Zhaoliang Meng ("Respondent"), Pakistan.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <snapchatdownloader.net>, <snapdownloadhq.com>, <snapdownloadhq.net> and <savesnaps.com>, registered with NameCheap, 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.

 

The Honorable Neil Anthony Brown KC as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on September 11, 2024; Forum received payment on September 11, 2024.

 

On September 11, 2024, NameCheap, Inc. confirmed by e-mail to Forum that the <snapchatdownloader.net>, <snapdownloadhq.com>, <snapdownloadhq.net> and <savesnaps.com> domain names are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. 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 September 12, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 2, 2024 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@snapchatdownloader.net, postmaster@snapdownloadhq.com, postmaster@snapdownloadhq.net and postmaster@savesnaps.com. Also on September 12, 2024, 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 September 16, 2024.

 

On September 16, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed The Honorable Neil Anthony Brown KC 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.

 

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

 

PRELIMINARY ISSUE: MULTIPLE RESPONDENTS

In the instant proceeding, the Complainant has submitted that the entities which control the 4 domain names at issue are effectively controlled by the same person and/or entity, which is operating in effect under at least one alias and possibly several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (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." The question therefore is whether the named Respondents, because of their common control, can be said in reality to be "the same domain name holder", which the Complainant submits that they are.

 

The Complainant relies on a series of commonalities between the registration of the disputed domain names. They are:

●       The Infringing Domain Names utilize the same registrar, internet service provider, and privacy protection service, as shown in Annex A to the Complaint.

●       The Infringing Domain Names all resolve to Snapchat video downloader websites with similar landing pages, as shown in Annex Y.

●       The Infringing Domain Names share a network address, as shown in Annex A.

●       The <snapdownloadhq.com> and <snapdownloadhq.net> domains are identical but use different TLDs.

●       The domain <snapchatdownloader.net> previously redirected to <snapdownloadhq.com>, as shown in Annex Y.

●       The domains <snapchatdownloader.net> and <snapdownloadhq.com> previously redirected to the same website, <socialmediafetch.com>, as shown in Annex Y.

●       Responses were received from the email address khanjahanzaib27@gmail.com when Respondent first reached out to Complainant via the privacy protected email address for the domains <snapchatdownloader.net> and <snapdownloadhq.com>, as show in Annex Y.

●       The <snapchatdownloader.net> and <snapdownloadhq.com> domains share DNS data, as shown in Annex Z.

●       The <snapchatdownloader.net> domain previously redirected to <savesnaps.com>, as shown in Annex AA, and now resolves to a website that is virtually identical to <savesnaps.com>, as shown in Annex W.

 

The Panel agrees with the case presented by the Complainant. In any event, 3 of the 4 domain names are clearly registered by the same person because that is the name it has supplied and, as will appear, the Panel is not persuaded by that person's attempt to dissociate itself for some reason from the remaining domain name, <snapdownloadhq.com>. It is obvious that the interests behind that domain name were just as involved in this exercise as were the interests behind the other domain names.

 

It is therefore clear to the Panel that these 4 domain names were concocted by the same entity. All of the domain names are promoting the same deceptive exercise and it would be a remarkable coincidence if the nominal Respondents all embarked on it independently.

 

Having regard to all of those considerations and the whole of the evidence, the Panel finds that the 4 domain names are commonly owned/controlled by a single Respondent who is therefore "the same domain name holder". The proceeding may therefore go forward on that basis.

 

The conclusion reached by the Panel is consistent with and based on two prior UDRP decisions brought by the present Complainant, namely Snap Inc. v. Roger Tulsa, et al., D2018-0431 (WIPO April 29, 2018) and Snap Inc. v. ALI ALSHUMRANI / ALI ALERYANI, FA1805001788602 (Forum June 14, 2018).

For reasons of convenience, the nominal Respondents will hereafter be referred to as "the Respondent".

 

PARTIES' CONTENTIONS

A.       Complainant

Complainant made the following contentions.

1.       The Complainant is a United States company that owns and distributes the enormously popular SNAPCHAT camera and messaging application and storytelling platform that allows its many users to share photographs, videos and messages called "Snaps" with others via mobile devices.

2.       It has been very successful and has achieved high public recognition and use.

3.       The Complainant provides its goods and services under trademarks for SNAPCHAT and SNAP. In particular, the evidence will establish that the Complainant has acquired registered trademark rights in the SNAPCHAT trademark by registering the trademark with the United States Patent and Trademark Office, registration Number 4,375,712, registered on July 30, 2013 and other national and international registrations for SNAPCHAT and derivatives (collectively "the SNAPCHAT trademark"). The Complainant has used that trademark since 2011 and continuously since its registration to offer its goods and services.

4.       In further particular, the evidence will establish that the Complainant has acquired registered trademark rights in the SNAP trademark by registering the trademark with the United States Patent and Trademark Office, registration Number 4,345,533 registered on June 4, 2013, and other national and international registrations for SNAP and derivatives (collectively "the SNAP trademark"). The Complainant has used that trademark since 2011 and continuously since its registration to offer its goods and services.

5.       In further particular, the evidence will establish that the Complainant has acquired registered trademark rights in its Ghost Logo service mark, described on the certificate of registration as "The mark consists of the shape of a ghost", by registering the service mark with the United States Patent and Trademark Office, registration Number 5,100,318, registered on December 13, 2016  and other national and international registrations for the Ghost Logo and derivatives (collectively "the GHOST LOGO trademark"). The Complainant has used that trademark since 2011 and continuously since its registration to offer its goods and services.

6.       In further particular, the evidence will establish that the Complainant has acquired registered trademark rights in its SNAPCHAT YELLOW trademark, described on the certificate of registration as "The mark consists of the color yellow on a square carrier with rounded corners designating an icon for a mobile application. The square shape and ghost design shown in dotted lines are not claimed as part of the mark(.)". Those rights have been established by registering the trademark with the United States Patent and Trademark Office, registration Number 5357726 registered on December 19, 2017 ("the SNAPCHAT YELLOW trademark"). The Complainant has used that trademark since 2011 and continuously since its registration to offer its goods and services.

7.       The SNAPCHAT, SNAP, GHOST LOGO and SNAPCHAT YELLOW trademarks have attracted substantial goodwill and are uniquely associated with the Complainant's goods and services.

8.       As well as its aforesaid trademarks, Complainant has registered the domain name <snapchat.com> that it uses in its business and in particular for its website at www.snapchat.com where it markets its products under the SNAPCHAT, SNAP, GHOST LOGO and SNAPCHAT YELLOW trademarks and brands and provides its service.

9.       The Respondent registered the disputed domain names as follows:

(a)       <snapchatdownloader.net> on August 7, 2023;

(b)       <snapdownloadhq.com> on February 16, 2023;

(c)       <savesnaps.com> on May 13, 2024; and

(d)       <snapdownloadhq.net>       on June 24, 2024,

("the disputed domain names"), all of which were registered well after the Complainant began using its aforesaid marks.

10.       The disputed domain names embody, without the consent of the Complainant, one or the other of the entirety of the SNAPCHAT trademark or the SNAP trademark,  with the addition as will be noted above, of one or more of the word "downloader", the word "download", the letters "hq" which are universally recognized as standing for "headquarters", the word "save" or the letter "s", and either the generic Top Level Domain ".com" or the generic Top Level Domain ".net".

11.       The disputed domain names are confusingly similar to the aforesaid trademarks as they include one or other of the trademarks with the aforesaid additions, none of which can negate a finding that a domain name is confusingly similar to a trademark.

12.       The Respondent has caused the domain names <savesnaps.com>, <snapdownloadhq.com>, and <snapdownloadhq.net> to resolve to websites that promote Snapchat Video Downloader tools (collectively the "Infringing Websites").

13.       Moreover, the domain name <snapchatdownloader.net> previously redirected to <savesnaps.com>, but now resolves to a website nearly identical to <savesnaps.com>.

14.       The Infringing Websites operate by scraping content from the web version of the Snapchat platform to enable users of the Infringing Websites to view Snapchat videos from targeted Snapchat accounts without the account holder's knowledge or permission. Thus, the Respondent has used the disputed domain names to resolve to the Infringing Websites that are enabled to scrape content from the Complainant's Snapchat platform to offer users of the Infringing Websites the ability to download content from the Snapchat platform in violation of Complainant's Terms of Service.

15.       Such use involves the use of the SNAPCHAT and SNAP marks in the disputed domain names and the SNAPCHAT mark in the names of the Infringing Websites. Moreover, the Respondent also makes use of a color similar to the yellow coloration of the SNAPCHAT YELLOW trademark and uses a logo that is clearly intended to invoke the Complainant's GHOST LOGO trademark on the Infringing Websites.

16.       The methodology proposed by the Respondent is that after entering the URL chosen by users in a link from a Snapchat video, users of the Infringing Websites are prompted to download the video. The video downloads with a watermark with Snapchat's Ghost logo and word mark. Such downloads are done without the Snapchat account holder's knowledge or permission. This suggests that the Respondent has a Snapchat account that Respondent is using to obtain access to publicly available Snapchat accounts via the web version of the Snapchat platform and that it then scrapes the content without authorization.

17.       The Respondent has no rights or legitimate interests in the disputed domain names. That is so because:

(a)       there is no relationship between the Complainant and the Respondent;

(b)       the Complainant has not authorized the Respondent to use any of its aforesaid trademarks or any similar trademark;

(c)       the Respondent is not commonly known by the disputed domain names;

(d)       the Respondent has not used the disputed domain names for a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i);

(e)       the Respondent has used the disputed domain names to invite users to commit  breaches of the Complainant's Terms of Service and induce them to violate their contractual obligations;

(f)       the Respondent has not acquired or used the disputed domain names for a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii).

(g)       the Complainant acquired its aforesaid trademark rights several years prior to the registration of the disputed domain names;

(h)       the Respondent had actual knowledge of the Complainant and its trademarks prior to the registration of the disputed domain names; and

(i)       there is no other ground on which it could conceivably be said that the Respondent has a right or legitimate interest in the disputed domain names.

17.The Respondent has registered and used the disputed domain names in bad faith. That is so because:

(a)                      the Respondent had actual knowledge of the Complainant and its aforesaid trademarks at the time the Respondent registered the domain names;

(b)                      the Respondent has used the domain names to scrape content from the Snapchat platform to offer users of the infringing websites the ability to download Snapchat videos posted by Snapchat account holders without authorization, in violation of the Complainant's Terms of Service;

(c)                      the Respondent temporarily made changes to the infringing websites, including a redirect to a domain name that did not include the aforesaid trademarks; this further subterfuge shows that the Respondent has no rights or legitimate interests in the disputed domain names and that it registered and has used them in bad faith;

(d)                      the Respondent's use of the domain names violates and induces others to violate the Complainant's Terms of Service;

(e)                      the Respondent used a privacy service to register the disputed domain names; and

(f)                      all of the acts, facts, matters and circumstances that will be shown by the evidence will establish that the Respondent registered and used the disputed domain names in bad faith.

B.       Respondent

Respondent made the following contentions in the form of a letter to Forum which, formal parts omitted, provided as follows:

 

"I hope this message finds you well. I am writing to acknowledge receipt of the complaint filed under the Uniform Domain Name Dispute Resolution Policy (UDRP) regarding the following domain names:

·       SNAPCHATDOWNLOADER.NET

·       SNAPDOWNLOADHQ.COM

·       SNAPDOWNLOADHQ.NET

·       SAVESNAPS.COM

I would like to provide some clarifications on the matter:

1.       Ownership of SNAPDOWNLOADHQ.COM: 

Please be informed that the domain SNAPDOWNLOADHQ.COM does not belong to our organization or any of our clients. We request that this domain be excluded from the complaint, as it is beyond our control.

2.       IT Services and Client Domains:

As a company, we provide various IT services, including domain registration, web hosting, and web/app development. Many of our clients, who are individuals or students without credit card facilities, ask us to register domain names on their behalf. Consequently, while our personal details may appear in the domain registrations, the ownership and control of these domains remain with the clients who pay for these services.

3.       Resolution Plan:

Since we are acting as intermediaries for our clients and not the direct owners of the domains in question, we would like to request a few additional days to investigate and facilitate the suspension or removal of services for the clients associated with the domains in question. Our aim is to cooperate fully and ensure that any unauthorized use of the domains is rectified as swiftly as possible.

 

We hope this clarification assists in resolving this matter amicably. Please do not hesitate to reach out for any further information or if you require any additional details.

 

Thank you for your understanding and cooperation."

 

FINDINGS

1.       The Complainant is a United States company that owns and distributes the popular SNAPCHAT camera and messaging application and storytelling platform that allows its many users to share photographs, videos and messages called "Snaps" with others via mobile devices.

2.       The Complainant provides its goods and services under trademarks for SNAPCHAT and SNAP. The evidence has established that the Complainant has acquired registered trademark rights in the SNAPCHAT trademark, the SNAP trademark, the GHOST LOGO trademark and the SNAPCHAT YELLOW trademark, details of which registrations are set out more particularly hereunder in this decision.

3.       The Complainant has used those trademarks since 2011 and continuously since their registration to offer its goods and services.

4.       The Respondent registered the disputed domain names as follows:

(e)       <snapchatdownloader.net> on August 7, 2023;

(f)       <snapdownloadhq.com> on February 16, 2023;

(g)       <savesnaps.com> on May 13, 2024; and

(h)       <snapdownloadhq.net>       on June 24, 2024,

("the disputed domain names"), all of which were registered well after the Complainant began using the aforesaid marks.

5.       The disputed domain names embody, without the consent of the Complainant, the SNAPCHAT and SNAP trademarks and in using them the Respondent has also used the GHOST LOGO trademark and the SNAPCHAT YELLOW trademark without permission.

6.       The Respondent has caused the disputed domain names to resolve to  infringing websites that are enabled to scrape content from the Complainant's Snapchat platform to offer users of the Infringing Websites the ability to download content from the Snapchat platform in violation of Complainant's Terms of Service.

7.       By reason of the matters aforesaid and as established by the evidence, the disputed domain names are confusingly similar to the trademark, the Respondent has no rights or legitimate interests in the domain names and the Respondent has registered and used the domain names in bad faith.

8.       Accordingly, the disputed domain names should be transferred to the Complainant.

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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.

 

Identical and/or Confusingly Similar

The first question that arises is whether the Complainant has rights in a trademark or service mark on which it may rely. The evidence has established that the Complainant has acquired registered trademark rights in the SNAPCHAT trademark by registering the trademark with the United States Patent and Trademark Office ("the USPTO") registration Number 4,375,712, registered on July 30, 2013 and other national and international registrations for SNAPCHAT and derivatives (collectively "the SNAPCHAT trademark"). The Complainant has used that trademark since 2011 and continuously since its registration to offer its goods and services.

In further particular, the evidence has established that the Complainant has acquired registered trademark rights in the SNAP trademark by registering the trademark with the United States Patent and Trademark Office, registration Number 4,345,533 registered on June 4, 2013, and other national and international registrations for SNAP and derivatives (collectively "the SNAP trademark"). The Complainant has used that trademark since 2011 and continuously since its registration to offer its goods and services.

In further particular, the evidence has established that the Complainant has acquired registered trademark rights in its Ghost Logo service mark, described on the certificate of registration as "The mark consists of the shape of a ghost", by registering the service mark with the United States Patent and Trademark Office, registration Number 5,100,318, registered on December 13, 2016 and other national and international registrations for the Ghost Logo and derivatives (collectively "the GHOST LOGO trademark"). The Complainant has used that trademark since 2011 and continuously since its registration to offer its goods and services.

In further particular, the evidence has established that the Complainant has acquired registered trademark rights in its SNAPCHAT YELLOW trademark, described on the certificate of registration as "The mark consists of the color yellow on a square carrier with rounded corners designating an icon for a mobile application. The square shape and ghost design shown in dotted lines are not claimed as part of the mark(.)". Those rights have been established by registering the trademark with the United States Patent and Trademark Office, registration Number 5357726 registered on December 19, 2017 ("the SNAPCHAT YELLOW trademark"). The Complainant has used that trademark since 2011 and continuously since its registration to offer its goods and services.

The SNAPCHAT, SNAP, GHOST LOGO and SNAPCHAT YELLOW trademarks have attracted substantial goodwill and are uniquely associated with the Complainant's goods and services.

All of the foregoing has been established by documentary evidence that the Panel has examined and found to be in order and to establish the Complainant's trademark rights.

The Complainant has thus established its trademark rights and hence its standing to bring this proceeding.

The next question that arises is whether the disputed domain names are identical or confusingly similar to the Complainant's aforesaid trademarks. The Panel finds that the disputed domain names are confusingly similar to the trademarks for the following reasons. The disputed domain names embody, without the consent of the Complainant, the entirety of one or the other of the SNAPCHAT trademark or the SNAP trademark, as is seen from the formulation of the disputed domain names, one or more of the word "downloader", the word "download", the letters "hq" which are universally recognized as standing for "headquarters", the word "save" and the letter "s", and either the generic Top Level Domain ".com" or the generic Top Level Domain ".net". These additions signify that the domain names all invoke the trademarks and are representing variously that they are domain names dealing with the Complainant and the provision of its goods and services under its trademarks, that they may be used for downloading content provided under the Complainant's Snapchat service, that the content will be provided from the headquarters of Snapchat, that it can be saved and that this can be done multiple times by virtue of the use of the letter "s" in the <savesnaps.com> domain name. The significance of these additions is that they do not detract from the thrust of the meaning of the domain names that comes from the presence of the trademarks, but rather that they underline or emphasize it, and the notion that they are official and genuine domain names of the Complainant.

There is therefore no doubt that internet users would see the domain names as invoking the Complainant, its SNAPCHAT and SNAP trademarks and the goods and services provided under them and that that conclusion would be re-enforced when it notes that the Respondent has also used the GHOST LOGO and SNAPCHAT YELLOW trademarks.

The addition of Top Level Domains such as ".com" and ".net" is ignored in the interpretation of a domain name and cannot negate a finding of confusing similarity between a domain name and a trademark, as all domain names require such an extension.

Internet users would thus see the domain names as similar to the trademarks and confusingly so, the confusion being that they raise a question mark as to whether they are official and genuine domain names of the Complainant or not.

The Panel therefore finds that the disputed domain names are confusingly similar to the Complainant's trademark under Policy ¶ 4(a)(i).

The Complainant has thus made out the first of the three elements that it must establish.

 

Rights or Legitimate Interests

It is now well established that the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii) and that, if the prima facie case is made out, the burden then shifts to the Respondent to show that it does have such rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)).

 

The Panel finds on the evidence that the Complainant has made out a prima facie case that arises from the following considerations, taken in the order in which they have been raised by the Complainant. The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain names because:

(a)       there is no evidence that there was a relationship between the Complainant and the Respondent; clearly the evidence is that the Respondent's actions have been motivated by it alone and could not conceivably have been motivated by anyone with a relationship with the Complainant;

(b)       the Complainant has not authorized the Respondent to use any of its aforesaid trademarks or any similar trademark; the evidence is that irrespective of the propriety of its conduct, the Respondent has made extensive use of the Complainant's SNAPCHAT and SNAP trademarks without its consent; moreover, the evidence is that in the course of doing so, the Respondent made extensive use of a color similar to the color used in the SNAPCHAT YELLOW trademark and also used the logo invoked by the GHOST LOGO trademark, both without the consent of the Complainant as the trademark owner; thus, the Respondent has made extensive use of the Complainant's trademarks, and all without the permission of the Complainant; by itself and without anything more, this shows that the Respondent could not have a right or legitimate interest in the disputed domain names that have been registered and used to perpetrate this unlawful use of the Complainant's trademarks;

(c)       the Respondent is not commonly known by the disputed domain names; there is no evidence that any of the nominal respondents is so known and it is far more likely that they are commonly known as Jahanzaib khan and Zhaoliang Meng, which are apparently their actual names;

(d)       the Respondent has not used the disputed domain names for a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i); this brings the case to its essence and the effect of the uses to which the Respondent has put its domain names; this has been set out at some length in the Contentions section of the Decision so that it is not necessary to repeat it here; the essence of the Respondent's conduct is that it has used the disputed domain names to resolve to the Infringing Websites that are enabled to scrape content from the Complainant's Snapchat platform to offer users of the Infringing Websites the ability to download content from the Snapchat platform in violation of Complainant's Terms of Service; the Panel should say first that it has read the Terms of Service and that the Complainant's analysis of those Terms and their effect is correct; the substantial provisions of those Terms of Service prohibit the following:

 

(i)Using the Services or the content on the Services to "copy, modify, archive, download, upload, disclose, distribute, sell, lease, syndicate, broadcast, perform, display, make available, make derivatives of, or otherwise use the Services or the content on the Services, other than temporary files that are automatically cached by your web browser for display purposes, as otherwise expressly permitted in these Terms, as otherwise expressly permitted by us in writing, or as enabled by the Service's intended functionality…";

(ii) Using any "robot, spider, crawler, scraper, or other automated means or interface to access the Services or extract other users' information…";

(iii)                      Using or developing "any third-party applications that interact with the Services or other users' content or information without our written consent...."; and

(iv)                      Bypassing or circumventing the security of the Services, attempting to circumvent any content-filtering technique, and attempting to access areas or features of the Services that the user is not authorized to access(.)" (emphasis added);

 

moreover, the Respondent's modus operandi is a flagrant breach of those prohibitions; it is clearly inimical to their proper operation that third parties should have access to the content provided by subscribers and even more so for the Respondent to lure internet users into downloading, saving and using that content with all of the potential for breach of privacy and contract that it entails; this was the same impropriety that was analyzed by the eminent panelist in Snap Inc. v. Ronald Linco, FA2402002085096, where he concluded that: "Rather, Respondent used the <snap-down.com> domain to scrape content from the Snapchat platform to offer users of the resolving website the ability to download content from the Snapchat platform in violation of Complainant's Terms of Service. This functionality also put the privacy and security of Snapchat users at risk, in that their Snapchat stories and videos could be stored and later used for unauthorized purposes by third parties. Panels have held that use of a domain name for such activity is not a bona fide offering of goods or services and does not confer rights or legitimate interests on a respondent. See Instagram LLC v. Domain Administrator See PrivacyGuardian.org / shuchang sun, D2021-1990 (WIPO Aug. 17, 2021) (finding that the Respondent lacked rights or legitimate interests in the disputed domain name where Respondent engaged in data scraping of the Complainant's platform content, violating the Complainant's Terms of Use); See also Instagram, LLC v. Private WhoIs, Global Domain Privacy Services Inc / Aleksandr Lyahevich, Private Person, D2021-0463 (WIPO May 14, 2021) (finding that Complainant established a prima facie case that the Respondent lacked rights or legitimate interests in the disputed domain name where Respondent used the disputed domain name for a website offering Internet users a tool for viewing and exploring Instagram without the need for an Instagram account, the operation of which would be in breach of the Complainant's Terms of Use and could put the privacy and security of Instagram users at risk, in that content scraped from the Instagram platform may be stored and later used for unauthorized purposes by third parties)."(emphasis added). The Panel agrees with that conclusion and would not express its findings in the present case in any different way; thus, the conclusion must be that this conduct could not give rise to a right or legitimate interest in the very domain names registered and used to carry out the impropriety described;

(e)       the Respondent has used the disputed domain names to invite users to commit breaches of the Complainant's Terms of Service and induce them to violate their contractual obligations; this ground is to the same effect as that already established;

(f)       the Respondent has not acquired or used the disputed domain names for a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii); there is nothing legitimate in the Respondent helping itself to the Complainant's trademarks that are then used without permission in domain names designed to and used to achieve a breach of the Complainant's Terms of Service, with all of the potential for breach of contract and breach of privacy that it entails; nor is it non-commercial, as it must have been done for money, which is commercial; nor it is fair in any way to the Complainant, Snapchat subscribers or to internet users in general;

(g)       the Complainant acquired its aforesaid trademark rights several years prior to the registration of the disputed domain names; this fact cannot but emphasize that the domain names were registered when the Complainant's business and its method of operation were well established and when it must have been known in the likely market that compliance with the Terms of Service was so essential and pivotal;

(h)       the Respondent had actual knowledge of the Complainant and its trademarks prior to the registration of the disputed domain names; the Complainant, its trademarks and method of operation were increasingly well known from 2011 and the domain names were registered in 2023 and 2024; thus the Respondent clearly knew its target and set about undermining it and putting the Complainant's customers at risk; and

(i)       there is no other ground on which it could conceivably be said that the Respondent has a right or legitimate interest in the disputed domain names; the Respondent's conduct makes it impossible for it to have a right or legitimate interest in the disputed domain names.

The Complainant has therefore convincingly made out all of the grounds it relies on to show that the Respondent does not have a right or legitimate interest in the disputed domain names.

 

All of these matters make out the prima facie case against the Respondent.

 

The Response of the Respondent is set out above. The Panel finds on the evidence, that none of its submissions have validity and the Panel does not accept them. In that regard, the domain name <snapdownloadhq.com> resolves to a website that promotes Snapchat Video Downloader tools as do the other domain names and the Complainant's cease and desist letter concerning that domain name produced the same effect as it did with its sister domain name <snapchatdownloader.net>, namely being redirected to the domain name <socialmediafetch.com> as an evasive measure. Moreover, the Respondent's submission under the heading "IT Services and Client Domains" is singularly unpersuasive, as there was obviously more afoot here than individuals or students wanting to register domain names. The Panel therefore does not accept the Respondent's submissions. In any event, the Respondent had an opportunity to respond to the far more substantial matters alleged against it, but it refrained from doing so, suggesting that the Complainant's case has been established, which the Panel finds has been established.

 

The Panel therefore finds that the Respondent has not rebutted the prima facie case against it and that the Complainant has made out the second of the three elements that it must establish.

 

Registration and Use in Bad Faith

It is clear that to establish bad faith for the purposes of the Policy, the Complainant must show that the disputed domain names were registered and used in bad faith. It is also clear that the criteria set out in the Policy ¶ 4(b) are not exclusive but that domain name proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.

The Complainant has submitted that the Respondent has registered and used the disputed domain names in bad faith on several grounds. In view of the evidence discussed above, which applies equally to the element of bad faith as to rights and legitimate interests, it is clear that the Complainant has made out all of the grounds relied on, as the Respondent has clearly been motivated by bad faith in the registration and use of the domain names. In particular, it is clear from the evidence that, as the Complainant has submitted:

(a)                      the Respondent had actual knowledge of the Complainant and its aforesaid trademarks at the time the Respondent registered the disputed domain names; this has been established beyond doubt on the evidence and in view of the Complainant's fame long before the domain names were registered; thus, the domain names were registered in bad faith;

(b)                      the Respondent has used the domain names to scrape content from the Snapchat platform to offer users of the infringing websites the ability to download Snapchat videos posted by Snapchat account holders without authorization in violation of the Complainant's Terms of Service; there are simply no words to describe this conduct other than that it was in bad faith;

(c)                      the Respondent temporarily made changes to the infringing websites, including a redirect to a domain name that did not include the aforesaid trademarks; this further subterfuge shows that the Respondent has no rights or legitimate interests in the disputed domain names and that it had registered and has used them in bad faith;

(d)                      the Respondent's use of the domain names violates and induces others to violate the Complainant's Terms of Service; as already noted, the Respondent's conduct is one thing and bad enough, but luring internet users to avail themselves of this subterfuge is another and equally egregious demonstration of bad faith;

(e)                      the Respondent used a privacy service to register the disputed domain names; this adds to the findings of bad faith; and

(f)                      all of the acts, facts, matters and circumstances shown by the evidence have established that the Respondent registered and used the disputed domain names in bad faith.

Finally, in addition to the specific provisions of the Policy and having regard to the totality of the evidence, the Panel finds that, in view of the Respondent's registration of the disputed domain names using the SNAPCHAT and SNAP trademarks, with the additional use of the SNAPCHAT YELLOW trademark and the GHOST LOGO trademark, and in view of the conduct of the Respondent, as shown by all of the available evidence, the Respondent registered and used the domain names in bad faith within the generally accepted meaning of that expression.

The Complainant has thus made out the third of the three elements that it must establish.

The Complainant has also correctly cited numerous prior UDRP decisions that support all of its contentions.

The Complainant has therefore established all of the elements that it must show under the Policy and it is entitled to the relief it seeks.

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <snapchatdownloader.net>, <snapdownloadhq.com>, <snapdownloadhq.net> and <savesnaps.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

The Honorable Neil Anthony Brown KC,

Panelist

Dated: September 18, 2024