Snap Inc. v. John Smith
Claim Number: FA2006001898876
Complainant is Snap Inc. (“Complainant”), represented by Emily A. DeBow of Kilpatrick Townsend & Stockton LLP, California, United States. Respondent is John Smith (“Respondent”), Sweden.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <snapkiksexting.com>, registered with NameCheap, Inc..
The undersigned certifies that he acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
James Bridgeman SC as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 3, 2020; the Forum received payment on June 3, 2020.
On June 4, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <snapkiksexting.com> 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 June 5, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 25, 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@snapkiksexting.com. Also on June 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 June 30, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James Bridgeman SC 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 disputed domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant relies on its rights in the SNAP trademark and other trademarks incorporating SNAP, including SNAPCHAT, as described below. Complainant submits that it registered and has continuously used the SNAP mark since long before the disputed domain name was registered.
Complainant has adduced supporting documentation to illustrate that since its launch in 2011, Complainant’s SNAPCHAT App has become one of the fastest growing and most popular smartphone applications in the world. It was declared the “Fastest Rising Startup” at the 2012 TechCrunch Crunchies Awards, and “Best Mobile Application” at the 2013 TechCrunch Crunchies Awards. By February 2014, a study concluded that 77% of U.S. college students used the Snapchat App at least once per day. By the end of 2014, the Snapchat App had 70 million daily active users, and by the end of 2015, the app had over 100 million daily active users.
On September 24, 2016, Complainant changed its name from Snapchat Inc., to Snap Inc., to reflect Complainant’s growing list of products beyond the SNAPCHAT App.
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. As of September 2017, the SNAPCHAT App had more than 178 million daily active users globally, a 250% increase over 2014, who sent an estimated 3.5 billion Snaps every day. As of the end of the first quarter of 2020, 229 million people on average used the Snapchat App daily, creating more than 4 billion Snaps each day.
Complainant submits that its SNAP mark is the dominant portion of the disputed domain name and argues that numerous courts and prior panels established under the Policy have recognized that the incorporation of a trademark in its entirety (as in the case with Respondent’s incorporation of the SNAP mark), or the dominant portion of a trademark (as in the case with the SNAPCHAT mark) may be sufficient to establish that a domain name is identical or confusingly similar to a complainant’s registered mark. See Snap, Inc. v. Peter Vagin / Chubbs Media, FA1805001788597 (Forum June 28, 2018) (finding the domain <snapfuck.me> confusingly similar to the SNAPCHAT mark because it contained the dominant portion of the SNAPCHAT mark).
Complainant further submits that the inclusion of the generic or descriptive term “sexting” does not distinguish the disputed domain name from its trademarks as panels established under the Policy have consistently held that the addition of a generic or descriptive term is not sufficient to distinguish a disputed domain name from a complainant’s mark. See Rockwell Automation v. WIS INC, FA1907001850448 (Forum Aug. 5, 2019) (finding the addition of complainant’s mark, ROCKWELL AUTOMATION, and the third-party mark, WEBEX, did not distinguish the disputed domain name from complainant’s mark.
Complainant adds that the gTLD <.com> extension does not change the conclusion that the disputed domain name is confusingly similar to the its SNAP mark. See Snap Inc. v. Nestor Hernandez, F1709001749325 (Forum Oct. 25, 2017) (“gTLDs are insufficient to defeat a test of confusingly similar”).
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name arguing that there is no relationship between Complainant and Respondent and that Respondent has no right to own or use any domain name incorporating Complainant’s SNAP mark.
Complainant adds that nothing in Respondent’s WHOIS information suggests that Respondent is commonly known by the disputed domain name and adds that where nothing in the record or WhoIs information shows that a respondent is commonly known by a disputed domain name, panels have found that such respondents lack rights or legitimate interests in the domain. See Snap Inc. v. Domain Admin / Whois Privacy Corp., FA1706001735300 (Forum Jul. 14, 2017) (“WHOIS information can evidence a finding that a respondent is not commonly known by a disputed domain name.”).
Complainant refers to the screenshots of the website to which the disputed domain name resolves which are included in an annex to the Complaint, which illustrate that Respondent’s website is called “Snapkiksexting” and advertises itself with the following slogan: “Find People to Sext With!” The website’s main page contains categories including “Girls Snapchat,” “Guys Snapchat,” and “Gay Snapchat” (and the same categories for the social media platform KIK). Clicking on one of the “Snapchat” categories leads users to bio-pages about individuals, each including information such as gender, race or ethnicity, age, and size. An “About me” section of each bio-page provides space to post his or her solicitation. Following each bio-page is a space for other users to send a message to that individual. As this suggests, the purpose of this website is to connect SNAPCHAT and KIK users looking to access adult-oriented content with other users of the platforms. Of particular concern is that Respondent’s website also appears to allow minors to post these bio-pages and nude images.
Moreover, Complainant alleges that the screenshot of the website to which the disputed domain name resolves illustrates that it is monetized with extensive pay-per-click advertising from which Respondent is benefitting.
Complainant submits that such use of the disputed domain name that is confusingly similar to Complainant’s mark to divert internet traffic to a commercial website is not a legitimate noncommercial or fair use under the Policy. See Snap Inc. v. Sammo Shuvro, FA1908001858470 (Forum Oct. 17, 2020) (finding no rights or legitimate interest where respondent used the disputed domain name to attract users for commercial gain by resolving to a website featuring sexually explicit adult dating content and photographs).
Complainant asserts that it first made use of the SNAPCHAT mark in September 2011 and so its prior rights in the SNAP and SNAPCHAT marks, as well as the extensive reputation that Complainant has established, shows that the disputed domain name was registered in bad faith with actual knowledge of Complainant’s rights in the SNAP and SNAPCHAT marks.
Complainant again refers to the screenshots of the website to which the disputed domain name resolves and submits that Respondent repeatedly refers to its SNAPCHAT App on the website and promotes activity that depends on use of the SNAPCHAT App. Complainant argues that this is uncontroverted evidence that Respondent had actual knowledge of Complainant’s marks prior to registering the disputed domain name. See Snap Inc. v. Daisy Ducharme / baby & belly photography, FA1911001872261 (Forum Dec. 28, 2019) (finding Respondent had actual knowledge of Complainant’s rights in the SNAPCHAT and SNAP marks based on Respondent’s use of Complainant’s logos, marks, and color scheme on its webpage).
Complainant additionally submits that Respondent’s use of the disputed domain name to promote and facilitate activity that violates Complainant’s Terms of Service, which prohibit both the purchase and/or sale of access to SNAPCHAT accounts, as well as use of the SNAPCHAT App to distribute pornography, is evidence of bad faith use of the disputed domain name. See Snap Inc. v. Kazi Raihan /Rashel Hossain / refath kanta / MOIN UDDIN (Forum May 11, 2020) (finding use of confusingly similar domain names to connect adult models with members who paid a fee to be added as followers to the adult models’ private Snapchat accounts in violation of Snap’s terms of service was evidence of bad faith registration and use for the purposes of Policy ¶ 4(a)(iii)).
In conclusion Complainant submits that Respondent registered and is using the disputed domain name in bad faith to divert internet traffic to Respondent’s website offering a purported pornographic sexting service with extensive pay-per-click advertising for Respondent’s commercial gain. See Snap Inc. v. Kazi Raihan / Rashel Hossain / refath kanta / MOIN UDDIN (Forum May 11, 2020) (finding use of the infringing domain names to attract Internet users to respondent’s sites for commercial gain in the form of money site visitors paid to access the Snapchat accounts of models participating in the scheme was bad faith registration and use under the Policy ¶4(b)(iv)).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant hosts the SNAPCHAT App and is the owner of the SNAPCHAT and SNAP marks and other various trademarks and service marks incorporating the term SNAP, including SNAP & Design, SNAP ADS, SNAP CHANNEL, SNAPCODE and SNAP PUBLISHER as well as the <snapchat.com> and <snap.com> domain names and corresponding websites and services.
Complainant has provided a list of its portfolio of trademark registrations and a number of copies of trademark registration certificates which include United States of America registered trademark SNAP, registration number 4,345,533, registered on June 4, 2013 on the Principal Register for goods in international class 9.
The disputed domain name was registered on June 19, 2019 and is being used to divert Internet traffic to a website that provides pay-per-click links and also allows the Internet users to access and post information and messages on Complainant’s SNAPCHAT App as well as the application of a third party.
There is no information available about Complainant except for that provided in the Complaint, the Registrar’s WhoIs and the Registrar’s response to the Forum’s request for verification of the registration details of the disputed domain name. Respondent availed of a privacy service to conceal his identity on the published WhoIs.
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”).
Complainant has provided uncontested convincing evidence of its rights in the SNAP and SNAPCHAT marks acquired through its portfolio of trademark and service mark registrations and the goodwill established through its extensive use of the SNAPCHAT mark on its Internet application which is used on average by 229 million people daily, posting 4 billion Snaps each day.
The disputed domain name <snapkiksexting.com> consists of Complainant’s SNAP mark, the third party KIK mark, the generic or descriptive term “sexting” and the <.com> top level domain extension.
Complainant’s mark is a prominent, if not dominant element of the disputed domain name. The third-party trademark KIK does not distinguish the disputed domain name from complainant’s mark so as to avoid the potential for confusion and in the circumstances of this Complaint the <.com> domain extension would be regarded by Internet users as merely a technical necessity without any distinguishing character.
Furthermore, the disputed domain name adopts the dominant element of Complainant’s SNAPCHAT mark as its initial and prominent element.
This Panel finds therefore that the disputed domain name is confusingly similar to the SNAP mark in which Complainant has rights. Complainant has therefore succeeded in the first element of the test in Policy ¶ 4(a)(i).
Complainant has made out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name arguing that there is no relationship between Complainant and Respondent; that Respondent has no right to own or use any domain name incorporating the SNAP mark; that nothing in Respondent’s WHOIS information suggests that Respondent is commonly known by the disputed domain name; that the purported purpose of the website to which the disputed domain name resolves, called “Snapkiksexting”, is to connect SNAPCHAT and users of the third-party KIK application, who are looking to access adult-oriented content with other users of the platforms; that of particular concern is that Respondent’s website also appears to allow minors to post these bio-pages and nude images; and moreover that the website to which the disputed domain name resolves is monetized with extensive pay-per-click advertising; and that Respondent’s use of the disputed domain name is not bona fide or a legitimate noncommercial or fair use under the Policy.
It is well established that if Complainant makes out a prima facie case, the burden of production shifts to Respondent to prove his rights or legitimate interests in the disputed domain name. Respondent has failed to file any Response to the Complaint or provide any defense to Complainant’s allegations and so has not discharged the burden. In the circumstances this Panel must find that on the balance of probabilities Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii).
On the evidence before this Panel, Complainant’s business and reputation has grown exponentially since 2011 to become one of the most recognizable applications on the Internet. It is implausible that the registrant of the disputed domain name was unaware of Complainant, its SNAPCHAT application and its valuable reputation when the disputed domain name was registered. Given that Complainant’s mark SNAP is the initial and prominent element of the disputed domain name, on the balance of probabilities the disputed domain name was registered with Complainant’s mark in mind to take predatory advantage of Complainant’s reputation and goodwill by misleading and causing confusion among Internet users and diverting Internet traffic.
The website to which the disputed domain name resolves repeatedly refers to Complainant’s SNAPCHAT App and promotes activity that depends on use of the SNAPCHAT App. As Respondent’s use of the disputed domain name is intended to divert Internet users to Respondent’s website, this use of the disputed domain name therefore encourages and facilitates activity that violates Complainant’s Terms of Service, which prohibit both the purchase and/or sale of access to SNAPCHAT accounts, as well as use of the SNAPCHAT App to distribute pornography. Respondent is therefore using the disputed domain name in bad faith.
This Panel finds therefore that Respondent registered and is using the disputed domain name in bad faith to divert internet traffic to Respondent’s website offering a purported pornographic sexting service with extensive pay-per-click advertising for Respondent’s commercial gain.
This Panel finds therefore that on the balance of probabilities, Respondent is intentionally using the disputed domain name in an intentional attempt to attract, for commercial gain, Internet users to his web site by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship ,affiliation, or endorsement of his web site and is therefore using the disputed domain name in bad faith.
As this Panel has found that the disputed domain name was registered and is being used in bad faith, Complainant has therefore succeeded in the third element of the test in Policy ¶ 4(a)(iii) and is entitled to the remedy sought in the Complaint.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <snapkiksexting.com> domain name be TRANSFERRED from Respondent to Complainant.
_____________________________________
James Bridgeman SC
Panelist
Dated: July 1, 2020
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