Snap Inc. v. Domain Admin / Whois Privacy Corp.
Claim Number: FA2102001931127
Complainant is Snap Inc. (“Complainant”), represented by Emily A. DeBow of Kilpatrick, Townsend & Stockton LLP, California, USA. Respondent is Domain Admin / Whois Privacy Corp. (“Respondent”), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <loginsnap.com>, registered with Internet Domain Service BS Corp.
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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 5, 2021; the Forum received payment on February 5, 2021.
On February 23, 2021, Internet Domain Service BS Corp confirmed by e-mail to the Forum that the <loginsnap.com> domain name is registered with Internet Domain Service BS Corp and that Respondent is the current registrant of the name. Internet Domain Service BS Corp has verified that Respondent is bound by the Internet Domain Service BS Corp 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 February 26, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 18, 2021 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@loginsnap.com. Also on February 26, 2021, 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 March 24, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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 operates the Snapchat App, which has been one of the fastest growing and most popular smartphone applications in the world. Complainant has rights in the SNAP mark through Complainant’s registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,345,533, registered June 4, 2013). Respondent’s <loginsnap.com> domain name is identical or confusingly similar to Complainant’s SNAP Mark as it includes the dominant part of the SNAP Mark, and merely adds the generic term “login” and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <loginsnap.com> domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized Respondent to use the SNAP mark. Additionally, Respondent does not used the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent passes off as Complainant to conduct a phishing scheme.
Respondent registered and uses the <loginsnap.com> domain name in bad faith. Respondent uses the disputed domain name to pass off as Complainant in furtherance of a phishing scheme. Additionally, Respondent has actual knowledge of Complainant’s rights in the SNAP mark based on the fame of the mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, based upon the uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <loginsnap.com> domain name.
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 asserts rights in the SNAP mark based on Complainant’s registration of the mark with the USPTO (e.g., Reg. No. 4,345,533, registered June 4, 2013). Registration of a mark with the USPTO is sufficient to demonstrate rights in the mark per Policy ¶ 4(a)(i). See Nintendo of America Inc. v. lin amy, FA 1818485 (Forum Dec. 24, 2018) ("Complainant’s ownership a USPTO trademark registration for the NINTENDO mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i).”). The Panel finds that Complainant has demonstrated rights in the SNAP mark per Policy ¶ 4(a)(i).
Complainant argues Respondent’s <loginsnap.com> domain name is confusingly similar to Complainant’s SNAP mark as it includes the dominant part of the SNAP mark and merely adds the generic term “login” and the “.com” gTLD. The addition of a generic term and a gTLD fail to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy). The Panel finds that the disputed domain name is confusingly similar to Complainant’s SNAP mark per Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have 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)); see also 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”). The Panel finds that Complainant has made a prima facie case.
Complainant contends Respondent lacks rights or legitimate interests in the <loginsnap.com> domain name as Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed Respondent to use the SNAP Mark. When no response is submitted, WHOIS information can be used to show that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1502001605239 (Forum Mar. 22, 2015) (“WHOIS information for the at-issue domain name lists ‘Domain Admin / Whois Privacy Corp.’ as the domain name’s registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the <google-status.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii).”). Additionally, lack of authorization to use Complainant’s Mark can prove that the Respondent is not commonly known by the disputed domain name. See Deutsche Lufthansa AG v. Mohamed elkassaby, FA 1801815 (Forum Sept. 17, 2018) (“The WHOIS lists “Mohamed elkassaby” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).”). The WHOIS information for the disputed domain name provided by the registrar lists the registrant as “Domain Admin / Whois Privacy Corp.” Additionally, there is no evidence to suggest that Respondent was authorized to use the SNAP Mark and Complainant contends that there is no relationship between Complainant and Respondent. The Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant argues that Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use as Respondent uses the domain to pass off as Complainant and operate a phishing scheme. The use of a confusingly similar domain name in order to pass off as a complainant in order to operate a phishing scheme is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”). Complainant provides screenshots showing the resolving website for the disputed domain name copies the format of Complainant’s Snapchat account login page and features Complainant’s SNAP mark. Complainant contends Respondent likely uses this fraudulent login page as part of a phishing scheme. The Panel finds that Respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii) and Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has proved this element.
Complainant argues that Respondent registered and uses the <loginsnap.com> domain name in bad faith because Respondent uses the disputed domain name to pass off as Complainant in furtherance of a phishing scheme. Under Policy ¶ 4(b)(iv), the use of a disputed domain name to pass off as a complainant and engages in phishing constitutes bad faith. See FIL Limited v. Li jie, FA 1718900 (Forum Mar. 17, 2017) (finding the <fidelity.cn.com> domain name was registered and used in bad faith as it resolved to a website which mimicked the complainant’s login page in an attempt to gain Internet users’ personal and financial information). Complainant provides screenshots showing the disputed domain name resolves to a webpage that mimics the look of Complainant’s login page for the Snapchat app. This is evidence of find bad faith registration and use per Policy ¶ 4(b)(iv).
Complainant also contends that Respondent registered the disputed domain name with actual knowledge of Complainants rights in the SNAP mark since the mark is famous and well-known. Actual knowledge of a complainants rights in a mark can be shown based on the fame and notoriety of the mark. See AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) (“Complainant contends that Respondent’s knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii).”); see also Google Inc. v. Ahmed Humood, FA1411001591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to and in competition with Complainant.”). Complainant provides evidence that the SNAP mark is widely recognized by consumers worldwide and contends Respondent’s subsequent registration of the <loginsnap.com> domain name sufficiently establishes bad faith. The Panel agrees with Complainant and finds based on the fame of the mark and Respondent’s use of the domain name that Respondent had actual knowledge of Complaint’s rights in the SNAP mark and registered and uses the domain name in bad faith per Policy ¶ 4(a)(iii).
Complainant has proved this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <loginsnap.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
March 31, 2021
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