Snap Inc. v. Host Master / 1337 Services LLC
Claim Number: FA2202001985437
Complainant is Snap Inc. (“Complainant”), represented by Dennis L. Wilson of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Host Master / 1337 Services LLC (“Respondent”), Saint Kitts and Nevis.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <snapusers.com> and <snapsex.co>, registered with Tucows Domains Inc..
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 22, 2022; the Forum received payment on February 22, 2022.
On February 23, 2022, Tucows Domains Inc. confirmed by e-mail to the Forum that the <snapusers.com> and <snapsex.co> domain names are registered with Tucows Domains Inc. and that Respondent is the current registrant of the names. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 March 1, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 21, 2022 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@snapusers.com, postmaster@snapsex.co. Also on March 1, 2022, 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 25, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant states that owns and distributes the enormously popular SNAPCHAT camera and messaging application, and storytelling platform – available for both the iOS and Android operating systems – that, among other things, allows users to share photographs, videos, and messages called “Snaps” with others via mobile devices (the “Snapchat App”). Complainant’s products empower people to express themselves, live in the moment, learn about the world, and have fun together. Since its launch in 2011, the Snapchat App has been one of the fastest growing and most popular smartphone applications in the world. The Snapchat App 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 use 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. From December 2015 to December 2016, there was a 68% increase in Snapchat App users to 158 million daily active users. Those users – each day – on average visited the Snapchat App more than 18 times, spent an average of 25-30 minutes on the app, and sent over 2.5 billion Snaps. During this period, the Snapchat App also consistently ranked among the Apple App Store’s top five most downloaded photo applications and top 15 most downloaded mobile applications overall. In 2016, the Snapchat App was recognized as the most-downloaded app in the Apple App Store. The Snapchat App was the also the 4th most downloaded app in the Apple App Store in 2021. 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, surpassing Facebook, Instagram, and Twitter. As of September 2017, the Snapchat App had more than 178 million daily active users globally, a 250% increase since 2014, who on average sent an estimated 3.5 billion Snaps every day. By the end of 2017, the number of daily active users of the Snapchat App increased 8.9 million or 5% sequentially to 187 million. According to Apple, the Snapchat App has been among the world's top ten most downloaded iOS apps for the last six consecutive years, from 2016-2021, including being the world's most downloaded iOS app in 2016. As of the end of the third quarter of 2021, Snapchat had, on average, 306 million daily active users. Complainant has rights in the SNAP mark through its registration of the mark in the United States on June 4, 2013.
Complainant alleges that the disputed domain names are confusingly similar to its SNAP mark as they incorporate the mark in its entirety and merely add the generic terms “users” or “sex” along with either the “.com” or “.co” top-level domain (“TLD”).
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain names as Respondent is not commonly known by the disputed domain names nor did Complainant authorize Respondent to use the SNAP mark in any way. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to resolve to websites that display adult oriented material.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith as Respondent’s websites revolve to adult oriented material. Respondent had actual knowledge of Complainant’s rights in the SNAP mark due to the long standing use and fame of the mark in commerce.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark SNAP and uses it to provide a camera and messaging application and storytelling platform.
Complainant’s rights in its mark date back to at least June 4, 2013.
The disputed domain names were registered on July 30, 2013 and July 9, 2020.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving websites for both disputed domain names display adult oriented material.
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”).
The disputed domain names incorporate Complainant’s SNAP mark in its entirety and merely add the generic terms “users” or “sex” along with either the “.com” or “.co” top-level domain (“TLD”). Registration of a domain name that contains a mark in its entirety and adds generic terms and a TLD does not distinguish the domain name from the mark per Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)); see also Rockwell Automation v. Zhao Ke, FA 1760051 (Forum Jan. 2, 2018) (“The disputed domain name <rockwellautomation.co> corresponds to Complainant's registered ROCKWELL AUTOMATION mark, with the space omitted and the ".co" top-level domain appended thereto. These alterations do not distinguish the domain name from Complainant's mark for purposes of the Policy.”). Therefore, the Panel finds that the disputed domain names are confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its SNAP mark. Respondent is not commonly known by the disputed domain name: past panels have looked at the available WHOIS information to determine whether a Respondent is commonly known by the disputed domain name. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Here, the WHOIS information shows the registrant as “Host Master / 1337 Services LLC”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving websites for both disputed domain names display adult oriented material. Use of a disputed domain name to resolve to a webpage that offers adult content is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii). See Altria Group, Inc. and Altria Group Distribution Company v. xiazihong, FA1732665 (Forum July 7, 2017) (holding that “[u]se of a domain name to display adult-oriented images is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy.”). Therefore the Panel finds that Respondent fails to use the disputed domain names to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain names.
Indeed, as already noted, the resolving websites display adult oriented material. Use of a disputed domain name that resolves to a webpage that offers adult oriented material may be evidence of bad faith per Policy ¶ 4(a)(iii). See Molson Canada 2005 v. JEAN LUCAS / DOMCHARME GROUP, FA1412001596702 (Forum Feb. 10, 2015) (“Further, Respondent’s diversion of the domain names to adult-oriented sites is registration and use of the disputed domain names in bad faith under Policy ¶ 4(a)(iii).”). Therefore the Panel finds that Respondent registered and uses the disputed domain names in bad faith per Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <snapusers.com> and <snapsex.co> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: March 25, 2022
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