Snap Inc. v. sara hei
Claim Number: FA2009001913332
Complainant is Snap Inc. ("Complainant"), represented by Emily A. DeBow of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is sara hei ("Respondent"), Massachusetts, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <piratersnaps.xyz>, registered with Dynadot, LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 22, 2020; the Forum received payment on September 22, 2020.
On September 23, 2020, Dynadot, LLC confirmed by email to the Forum that the <piratersnaps.xyz> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 September 29, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 19, 2020 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@piratersnaps.xyz. Also on September 29, 2020, the Written Notice of the Complaint, notifying Respondent of the email 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 October 26, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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
Complainant owns and distributes a popular camera and messaging application and storytelling platform. The app was launched in 2011; it had 187 million daily active users at the end of 2017, and 238 million in mid-2020. Complainant uses the SNAPCHAT mark in connection with the app and platform, and refers to individual messages shared via the app as "Snaps." Complainant owns numerous trademark registrations for SNAPCHAT and SNAP in jurisdictions around the world, including United States registrations for both of these terms as standard character marks (with first use dates of 2011 and 2012 respectively). Complainant claims that both marks have become famous as a result of widespread use and public recognition.
The disputed domain name was registered in December 2018. The domain name is being used to redirect users to a French-language website entitled "Pirater Snapchat Gratuitement" ("Hack Snapchat for Free"). The site prominently displays Complainant's SNAPCHAT mark and associated logo and yellow color scheme, and invites users to enter a Snapchat username. Users are then redirected to various advertising surveys and other sites, presumably for the purpose of generating advertising or affiliate revenues for Respondent. Complainant also suggests that Respondent is using the domain name to perpetrate a phishing scheme, tricking users into revealing personal information in order to obtain access to a nonexistent hacking tool. Complainant states that there is no relationship between Complainant and Respondent, and that Respondent is not commonly known by the disputed domain name.
Complainant contends on the above grounds that the disputed domain name <piratersnaps.xyz> is confusingly similar to its SNAP mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <piratersnaps.xyz> incorporates Complainant's registered SNAP trademark, adding the generic term "pirater" (French for "to hack") and the ".xyz" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Snap Inc. v. Sara Hei / Huda Beuutyy / David Marie, FA 1819433 (Forum Jan. 18, 2019) (finding <piratersnap.xyz> confusingly similar to SNAP). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization and it is being used for a website that uses Complainant's marks and trade dress, all for the apparent purpose of generating advertising or affiliate revenues for Respondent and possibly to support a phishing scheme. Such conduct does not give rise to rights or legitimate interests under the Policy. See, e.g., Snap Inc. v. Sara Hei / Huda Beuutyy / David Marie, supra (finding lack of rights or interests in nearly identical circumstances).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [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 [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
The disputed domain name was registered on December 19, 2018, eight days after Respondent was served with the complaint in a proceeding involving a similar domain name, <piratersnap.xyz>, that it had used in substantially the same manner as the domain name in this proceeding. See Snap Inc. v. Sara Hei / Huda Beuutyy / David Marie, supra (ordering transfer of <piratersnap.xyz> and four other domain names). The Panel finds bad faith registration and use here for the same reasons as those set forth in the prior proceeding.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <piratersnaps.xyz> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: October 26, 2020
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