Snap Inc. v. michael smith
Claim Number: FA2004001894441
Complainant is Snap Inc. (“Complainant”), represented by Emily A. DeBow of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is michael smith (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <baesnaps.com> (‘the Domain Name’), registered with GoDaddy.com, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 30, 2020; the Forum received payment on April 30, 2020.
On May 1, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <baesnaps.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On May 5, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 26, 2020 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@baesnaps.com. Also on May 5, 2020, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On May 27, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the 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
The Complainant’s contentions can be summarised as follows:
The Complainant owns the SNAPCHAT and SNAP trade marks used since 2012 all registered in, inter alia, the USA for computer software for smart devices. It offers “premium” content as part of its service.
The Domain Name registered in 2015 is confusingly similar to the Complainant’s SNAP mark incorporating it in its entirety adding only the generic element “bae”, the letter “s” and the gTLD “.com”.
The Infringing Domain Name resolves to a website called “Baesnaps” (the “Infringing Website”), which purports to offer a platform for adult models (referred to as “Premium Snapchat Models”) to monetize their private Snapchat accounts by connecting the models with potential subscribers to those accounts. A subscriber must pay a monthly fee, averaging $30.00 per month, to be added and maintained as a follower of the adult model’s private Snapchat account, referred to on the Infringing Website as a “Premium Snap.” Once a subscriber makes payment, they can receive adult and pornographic photos and/or videos from that model via the model’s private Snapchat account. In addition, the Infringing Website solicits those with “large Snapchat Accounts” to become affiliates with the Infringing Website in exchange for $5.00 per month per subscriber,” and solicits adult models to fill out applications to “sell their own premium snap” via the Infringing Website or to get paid for posting adult content on the website operator’s Snapchat account at the Snapchat username “smash.tv.”
The Respondent is not commonly known by the Domain Name and is not authorised by the Complainant. Using a trade mark to drive traffic to a competing web site for commercial gain and pornographic services in violation of the Complainant’s terms and conditions is not a bona fide offering of goods or services or a legitimate noncommercial fair use. The Respondent does not have rights or legitimate interest in the Domain Name.
The reference to the Complainant and its business, mark and software and services on the web site shows that the Respondent is aware of the Complainant and its business. The Respondent’s conduct is registration and use in bad faith as it is using a confusingly similar domain name to attract internet users to its competing commercial web site offering pornography related services. This also disrupts the Complainant’s business in violation of the Complainant’s terms of service which is also bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant owns the SNAPCHAT and SNAP trade marks used since 2012 all registered in, inter alia, the USA for computer software for smart devices.
The Domain Name registered in 2015 has been used to offer pornographic related services.
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”).
Identical and/or Confusingly Similar
The Domain Name consists of the Complainant’s SNAP mark (registered around the world, inter alia, in the USA for computer related software and services first used in 2012), the generic term “bae”, the letter “s” and the gTLD “.com”.
Previous panels have found confusing similarity when a respondent merely adds a generic term to a Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The Panel agrees that the addition of the generic element ‘bae’ to the Complainant's mark does not distinguish the Domain Name from the Complainant's registered trade mark pursuant to the Policy.
The addition of the letter “s” similarly does not distinguish a disputed domain name from a mark. See LodgeWorks Partners, L.P. v. Isaac Goldstein / POSTE RESTANTE, FA 1717300 (Forum Apr. 5, 2017)
The gTLD “.com” does not serve to distinguish the Domain Name from the Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose to a mark in which the Complainant has rights.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 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 use of the Domain Name is commercial and so cannot be legitimate non commercial fair use.
The use of a domain name containing a mark with a reputation to resolve to adult orientated material cannot constitute a bona fide use. See Altria Group, Inc. and Altria Group Distribution Company v xiazihong, FA 1732665 (Forum July 7, 2017).
Use of a domain name to enable users to violate the terms of service of a Complainant’s offering may not be a bona fide offering of goods or services or legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) or (iii). See Google Inc. v. Onur Koycegiz, FA1741705 (Forum Aug. 25, 2017) (finding that respondent’s use of the <10youtube.com> domain name in association with a website that enabled Internet users to download and save content from Google’s YouTube service in violation of Google’s YouTube Terms of Service did not constitute either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The reference by the Respondent to the Complainant’s software and service on the web site attached to the Domain Name shows that the Respondent was aware of the Complainant and its business, rights and software and services at the time of registration of the Domain Name. The Respondent has used the Domain Name to divert and mislead Internet users for commercial gain see Andrey Ternovskiy dba Chatroulette v. Abdelbasset Selmi, FA 1638963 (Forum Oct. 28, 2015) (finding the respondent’s use of the at-issue domain name to resolve to pornographic content indicated the respondent registered and used the <chatroulette.us> domain name in bad faith per Policy ¶ 4(b)(iv)). Use of a domain name containing a trade mark in relation to a web page hosting adult material is evidence of bad faith registration and use under Policy 4 (b)(iii). See Molson Canada 2005 v JEAN LUCAS/DOMCHARME GROUP, FA 1412001596702 (Forum Feb 10, 2015). The fact that the Respondent’s web sites look different to that of the Complainant is not relevant where a complainant’s trade mark has been used for adult content.
Use of a disputed domain name to violate or induce others to violate a complainant’s terms of service can indicate bad faith registration per Policy ¶ 4(a)(iii). See Google Inc. v. Onur Koycegiz, FA1741705 (Forum Aug. 25, 2017) (finding use of a domain name for activity that violated the complainant’s terms of service to constitute bad faith use and registration under the Policy).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <baesnaps.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: May 27, 2020
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