Snap Inc. v. Domain Admin / Whois Privacy Corp.
Claim Number: FA1706001735300
Complainant is Snap Inc. (“Complainant”), represented by Dennis L. Wilson 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 <isnapchathack.com>, registered with TLD Registrar Solutions Ltd..
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.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 9, 2017; the Forum received payment on June 9, 2017.
On June 12, 2017, TLD Registrar Solutions Ltd. confirmed by e-mail to the Forum that the <isnapchathack.com> domain name is registered with TLD Registrar Solutions Ltd. and that Respondent is the current registrant of the name. TLD Registrar Solutions Ltd. has verified that Respondent is bound by the TLD Registrar Solutions Ltd. 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 12, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 3, 2017 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@isnapchathack.com. Also on June 12, 2017, 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 July 5, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. 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
i) Complainant, Snap Inc., designs and distributes the Snapchat application. In connection with this business, Complainant uses the SNAPCHAT mark to promote its goods and services. Complainant has rights in the mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,375,712, registered July 30, 2013). Respondent’s domain name, <isnapchathack.com>, is confusingly similar to Complainant’s mark as it wholly appropriates Complainant’s mark and adds the generic terms “i” and “hack” as well as the generic top-level-domain (“gTLD”) “.com.”
ii) Respondent lacks rights and legitimate interests in <isnapchathack.com>. Respondent is not commonly known by the disputed domain name nor has Complainant authorized Respondent to register a domain name reflecting its mark. Further, Respondent failed to use <isnapchathack.com> in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead <isnapchathack.com> resolves to a domain name offering malicious software to unlawfully obtain confidential information of Complainant’s customers as shown in screenshot of the page <isnapchathack.com> resolves to.
iii) Respondent registered and uses <isnapchathack.com> in bad faith. Respondent uses the disputed domain name to disrupt Complainant’s business. Respondent utilizes the disputed domain name to drive traffic to Respondent’s website for Respondent’s commercial gain. Respondent had actual knowledge of Complainant’s rights in the SNAPCHAT mark at the time Respondent registered the disputed domain name. Respondent utilizes the disputed domain name to promote unlawful activity.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes that <isnapchathack.com> was registered March 20, 2015.
Complainant established that it had rights in the mark contained in the disputed domain name. Disputed domain name is confusingly similar to Complainant’s protected mark.
Respondent has no rights to or legitimate interests in the disputed domain name.
Respondent registered and used the disputed domain name 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000)
(“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant claims rights in the SNAPCHAT mark based upon registration with the USPTO (Reg. No. 4,375,712, registered July 30, 2013). Registration with a trademark authority such as the USPTO is sufficient to establish rights in a mark per Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”). The Panel therefore finds Complainant has rights in the SNAPCHAT mark.
Next, Complainant argues Respondent’s domain name, <isnapchathack.com>, is confusingly similar to Complainant’s mark as it wholly appropriates Complainant’s mark and adds the generic terms “i” and “hack” as well as the gTLD “.com.” Addition of generic terms and a gTLD does not remove a domain name from the realm of confusing similarity per Policy ¶ 4(a)(i). See Morgan Stanley v. Eugene Sykorsky / private person, FA 1651901 (Forum Jan. 19, 2016) (concluding that the addition of a generic term and top level domain to a trademark is inconsequential under a Policy ¶ 4(a)(i) analysis.). The Panel therefore finds Respondent’s domain name to be confusingly similar to Complainant’s SNAPCHAT mark.
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), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006)
(“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain
names.”).
Complainant argues Respondent is not commonly known by <isnapchathack.com> nor has Complainant authorized Respondent to register a domain name reflecting its mark. In lieu of a Response to the contrary, WHOIS information can evidence a finding that a respondent is not commonly known by a disputed domain name. See Educ. Broad. Corp. v. DomainWorks Inc., FA 882172 (Forum Apr. 18, 2007) (concluding that the respondent was not commonly known by the <thirteen.com> domain name based on all evidence in the record, and the respondent did not counter this argument in its response); see also State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here, the WHOIS information of record names “Domain Admin / Whois Privacy Corp.” as the registrant of the domain name. As such, the Panel finds Respondent is not commonly known by the disputed domain name.
Next, Complainant argues Respondent failed to use <isnapchathack.com> in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Use of a disputed domain name to offer malicious software does not constitute a bona fide offering or a legitimate use per Policy ¶ 4(c)(i) & (iii). See Google Inc. v. Gridasov, FA 474816 (Forum July 5, 2005) (finding that the respondent’s use of a disputed domain name “that attempts to download malicious computer software into the computers of those who visit the website . . . [which] may annoy or harm the users in some way . . . is harmful to Complainant as the users may assume that Complainant has some affiliation with the harmful content. Such use of a website that is presumably intended to jeopardize the goodwill Complainant has created in its mark is not, therefore, a use in connection with a bona fide offering of goods or services or a legitimate or fair use of the domain names pursuant to Policy ¶¶ 4(c)(i) or (iii).”). Here, <isnapchathack.com> resolves to a domain name offering malicious software to unlawfully obtain confidential information of Complainant’s customers as shown in the screenshot of the page <isnapchathack.com> resolves to). The Panel therefore finds Respondent lacks rights and legitimate interests in the disputed domain name per Policy ¶¶ 4(c)(i) & (iii).
Respondent registered and uses <isnapchathack.com> in bad faith. Respondent uses the disputed domain name to disrupt Complainant’s business through the offer of malicious software that facilitates the theft of customer information. Use of a disputed domain name to serve malicious software that purloins confidential information does not evidence good faith registration and use per Policy ¶ 4(b)(iii). See Amazon Technologies, Inc. v. Timothy Mays aka Linda Haley aka Edith Barberdi, FA1504001617061 (Forum June 9, 2015) (“In addition, Respondent’s undenied use of the websites resolving from the contested domain names to distribute malware and other malicious downloads further illustrates its bad faith in the registration and use of those domain names.”). Here, Respondent utilizes the confusingly similar domain name to host malicious software that steals confidential username and password information from customers of Complainant. As such, the Panel finds Respondent acted in bad faith per Policy ¶ 4(b)(iii).
Next, Complainant argues Respondent utilizes the disputed domain name to drive traffic to Respondent’s website for Respondent’s commercial gain. Use of a disputed domain name to host malicious software in an attempt to commercially benefit evinces a finding of a lack of rights and legitimate interests per Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also Google, Inc. v. Petrovich, FA 1339345 (Forum Sept. 23, 2010) (finding that disputed domain names which distribute malware to Internet users’ computers demonstrate Respondent’s bad faith under Policy ¶ 4(b)(iv)). Here, Respondent uses <isnapchathack.com> to offer a hacking tool to conduct an online marketing campaign for Respondent’s commercial gain. The Panel therefore finds Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Next, Complainant contends Respondent had actual knowledge of Complainant’s rights in the SNAPCHAT mark at the time Respondent registered the disputed domain name. Actual knowledge of a complainant’s rights in a mark can be determined through an analysis of the totality of the circumstances. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of
it.”). Here, Respondent registered a domain wholly incorporating Complainant’s mark more than a year after Complainant registered the mark with the USPTO. Respondent places Complainant’s SNAPCHAT mark and logos on the resolving webpage. The Panel considers these factors and finds evidence of Respondent’s actual knowledge of Complainant’s rights in the SNAPCHAT marks per Policy ¶ 4(a)(iii).
Last, Complainant contends Respondent utilizes the disputed domain name to promote unlawful activity. Use of a disputed domain name for an illegal purpose supports a finding of bad faith per Policy ¶ 4(a)(iii). See Minn. State Lottery v. Mendes, FA 96701 (Forum Apr. 2, 2001) (finding bad faith because it would be illegal for the respondent to use the domain name <mnlottery.com> without government approval). Here, Complainant asserts Respondent’s unlawful hacking software illegally purloins confidential customer data. The Panel agrees with Complainant and finds further evidence of Respondent’s bad faith registration and use 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 <isnapchathack.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: July 14, 2017
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