Snap, Inc. v. Malkam Dior
Claim Number: FA1707001741274
Complainant is Snap, Inc. (“Complainant”), represented by Peter E. Kidd of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Malkam Dior (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <snapchatdrones.com>, registered with GoDaddy.com, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 24, 2017; the Forum received payment on July 24, 2017.
On July 25, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <snapchatdrones.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 July 25, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 14, 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@snapchatdrones.com. Also on July 25, 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 August 15, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (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, Snap, Inc., is a designer and distributor of the SNAPCHAT messaging application. In connection with this business, Complainant uses the SNAPCHAT mark to promote its goods and services. Complainant has rights in the SNAPCHAT mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 4,375,712, registered July 30, 2013). Respondent’s <snapchatdrones.com> is confusingly similar as it adds the generic term “drones” and the generic top-level-domain (“gTLD”) “.com” to Complainant’s wholly incorporated mark.
Respondent lacks rights and legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name. Complainant has not authorized Respondent to use the SNAPCHAT marks. Further, Respondent failed to use <snapchatdrones.com> in connection with a bona fide offer of goods or services or for a legitimate noncommercial or fair use. Instead, Respondent has offered to sell the <snapchatdrones.com> domain name to Complainant for $4,600,000, well in excess of Respondent’s out-of-pocket expenses related to registering the domain name.
Respondent registered and uses <snapchatdrones.com> in bad faith. Respondent has offered to sell the domain name to Complainant in excess of the out-of-pocket costs of registration. Respondent acted opportunistically in registering the disputed domain name shortly after Complainant released news relating to the domain name. Respondent had actual knowledge of Complainant’s rights in the SNAPCHAT mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Snap, Inc., is a designer and distributor of the SNAPCHAT messaging application. In connection with this business, Complainant uses the SNAPCHAT mark to promote its goods and services. Complainant has rights in the SNAPCHAT mark based upon registration with the USPTO (e.g. Reg. No. 4,375,712, registered July 30, 2013). Respondent’s <snapchatdrones.com> is confusingly similar to Complainant’s SNAPCHAT mark.
Respondent, Malkam Dior, registered the <snapchatdrones.com> domain name on March 1, 2017.
Respondent lacks rights and legitimate interests in the disputed domain name.
Respondent registered and uses <snapchatdrones.com> 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 has rights in the SNAPCHAT mark based upon registration with the USPTO. See T-Mobile USA, Inc. dba MetroPCS v. Ryan G Foo / PPA Media Services, FA 1627542 (Forum Aug. 9, 2015) (finding that Complainant has rights in the METROPCS mark through its registration with the United States Patent and Trademark Office).
Respondent’s <snapchatdrones.com> domain name is confusingly similar as it adds the generic term “drones” and the gTLD “.com” to Complainant’s wholly incorporated SNAPCHAT mark.
Respondent is not commonly known by the <snapchatdrones.com> domain name. Complainant has not authorized Respondent to use the SNAPCHAT mark. The WHOIS information lists the registrant of <snapchatdrones.com> as “Malkam Dior.” See Chevron Intellectual Property LLC v. Fred Wallace, FA 1626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name); see also Navistar International Corporation v. N Rahmany, FA 1620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
Respondent has failed to use <snapchatdrones.com> in connection with a bona fide offer of goods or services or for a legitimate noncommercial or fair use. Instead, Respondent offered to sell the <snapchatdrones.com> domain name to Complainant for $4,600,000, well in excess of Respondent’s out-of-pocket expenses related to registering the domain name. An offer by a respondent to sell a domain name in excess of the out-of-pocket registration costs associated with said website shows a failure to make a bona fide offer of goods or services or a legitimate noncommercial or otherwise fair use per Policy ¶¶ 4(c)(i) & (iii). See University of Rochester v. Park HyungJin, FA 1587458 (Forum Dec. 9, 2014) (“The Panel finds Respondent’s willingness to sell this <perifacts.com> domain name in excess of out-of-pocket registration costs weighs against Respondent’s case for rights or legitimate interests in the domain name.”). Here, Respondent made multiple offers to sell the disputed domain name to the Complainant in excess of the registration costs. As such, Respondent lacks rights and legitimate interests in the disputed domain name.
Respondent registered and uses <snapchatdrones.com> in bad faith. Respondent offered to sell the domain name to Complainant in excess of the out-of-pocket costs of registration. Offers to sell a disputed domain name in excess of the out-of-pocket costs of registration shows bad faith under Policy ¶ 4(b)(i). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007) (concluding that the respondent registered and was using the <gwbakeries.mobi> domain name in bad faith according to Policy ¶ 4(b)(i) where it offered it for sale for far more than its estimated out-of-pocket costs it incurred in initially registering the disputed domain name). Here, Respondent sought $4,600,000 from Complainant in exchange for the disputed domain name.
Respondent acted opportunistically in registering the domain name as Respondent registered <snapchatdrones.com> shortly after Complainant released news relating to the domain name. Opportunistic registration of a domain name shows bad faith under Policy ¶ 4(a)(iii). See Pettigo Comercio Internacional Lda v. Siju Puthanveettil, FA 1600741 (Forum Feb. 18, 2015) (concluding that because the respondent registered the <lycaradio.com> domain name within hours of a UK media report announcing the acquisition of Sunrise Radio by Lyca, the complainant, the respondent had acted in opportunistic bad faith according to Policy ¶ 4(a)(iii)). Here, Respondent registered the disputed domain name one day after Complainant’s drone product development was reported in the news media.
Respondent also had actual knowledge of Complainant’s rights in the SNAPCHAT mark. Therefore, Respondent registered and used the <snapchatdrones.com> domain name in bad faith under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“[T]he Panel here finds actual knowledge through the name used for the domain and the use made of it.”). Here, Respondent registered <snapchatdrones.com> well after Complainant made first use of the SNAPCHAT mark and well after Complainant’s SNAPCHAT software became recognized worldwide.
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 <snapchatdrones.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: August 28, 2017
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