Snap Inc. v. Sara Hei / Huda Beuutyy / David Marie
Claim Number: FA1812001819433
Complainant is Snap Inc. (“Complainant”), represented by Dennis L. Wilson of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Sara Hei (“Respondent”), Morocco.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <snapviewers.net> and <snpchtchef.com>, registered with Netearth One Inc D/B/A Netearth; and <justsnapit.xyz>, <piratersnap.xyz>, and <snaphack.info>, registered with Namecheap, 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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 4, 2018; the Forum received payment on December 4, 2018.
On December 5, 2018, Namecheap, Inc. and Netearth One Inc. D/B/A Netearth confirmed by e-mail to the Forum that the <justsnapit.xyz>, <piratersnap.xyz>, <snaphack.info>, <snapviewers.net>, and <snpchtchef.com> domain names are registered with Namecheap, Inc. and Netearth One Inc. D/B/A Netearth and that Respondent is the current registrant of the names. Namecheap, Inc. and Netearth One Inc. D/B/A Netearth have verified that Respondent is bound by the Namecheap, Inc. and Netearth One Inc. D/B/A Netearth registration agreements and have thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On December 11, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 31, 2018 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@justsnapit.xyz, postmaster@piratersnap.xyz, postmaster@snaphack.info, postmaster@snapviewers.net, and postmaster@snpchtchef.com. Also on December 11, 2018, 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 January 7, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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 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. Complainant has rights in the SNAP (e.g. Reg. No. 4,111,564, registered Mar. 13, 2012) and SNAPCHAT (e.g. Reg. No. 4,375,712, registered July 30, 2013) marks through the registration of the marks with the United States Patent and Trademark Office (“USPTO”). Respondent’s <snpchtchef.com> domain name merely removes the interior vowels from the SNAPCHAT mark and adds the generic/descriptive term “chef.” Respondent’s <justsnapit.xyz>, <piratersnap.xyz>, <snaphack.info>, and <snapviewers.net> domain names all include the SNAP mark and add one or more descriptive/generic terms, including “just,” “it,” “pirater,” “hack,” and/or “viewers.” Further, each domain name adds either the “.com,” “.xyz,” “.info,” or the “.net” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <justsnapit.xyz>, <piratersnap.xyz>, <snaphack.info>, <snapviewers.net>, and <snpchtchef.com> domain names. Respondent is not commonly known by the disputed domain names, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the domain names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent is using the disputed domain names to offer a hacking tool for Complainant’s legitimate offering to drive traffic to Respondent’s websites which also include links to advertising offers, for Respondent’s commercial gain. Further, Respondent is using the infringing domain names to perpetrate a phishing scheme.
Respondent registered and uses the <justsnapit.xyz>, <piratersnap.xyz>, <snaphack.info>, <snapviewers.net>, and <snpchtchef.com> domain names in bad faith. Respondent uses the domain names to facilitate the unlawful access and manipulation of Complainant’s servers and offer advertising links, for commercial gain, which directly competes with Complainant’s services and is intended to disrupt Complainant’s business. Additionally, Respondent uses the domain names to phish for user information. Further, Respondent must have had actual knowledge of Complainant’s rights in the SNAP and SNAPCHAT marks given the fame and notoriety associated with the marks along with Respondent’s use of the marks and logos on the resolving webpages associated with the domain names.
B. Respondent
Respondent failed to submit a response in this proceeding. The Panel notes that Respondent registered the domain names on the following dates: <justsnapit.xyz> (August 26, 2018), <piratersnap.xyz> (June 20, 2018), <snaphack.info> (August 26, 2018), <snapviewers.net> (November 24, 2016), and <snpchtchef.com> (August 17, 2018).
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.”).
Preliminary Issue: Multiple Respondents
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
Complainant contends that the resolving webpages are all in the French language, and all offer the similar service of offering a purported tool to hack Snapchat accounts of others. Further, the registrant email for each of the domain names is souka.stream@gmail.com.
Additionally, each of the <justsnapit.xyz>, <snaphack.info>, <snapviewers.net>, and <snpchtchef.com> list the registrant as “Sara Hei,” while the <piratersnap.xyz> domain name previously listed “Sara Hei” as the registrant. Moreover, all of the resolving webpages have the same IP Address and Nameserver. Finally, the <snpchtchef.com>, <snaphack.info>, and <piratersnap.xyz> domain names all include links to each other at the bottom of their respective webpages
The Panel finds that Complainant has sufficiently presented evidence demonstrating that the listed entities are jointly controlled.
Complainant claims rights in the SNAP (e.g. Reg. No. 4,111,564, registered Mar. 13, 2012) and SNAPCHAT (e.g. Reg. No. 4,375,712, registered July 30, 2013) marks through the registration of the marks with the USPTO. Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of 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 at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”). Accordingly, the Panel finds that Complainant has established rights in the SNAP and SNAPCHAT marks for the purposes of Policy ¶ 4(a)(i).
Complainant next argues that Respondent’s <justsnapit.xyz>, <piratersnap.xyz>, <snaphack.info>, <snapviewers.net>, and <snpchtchef.com> domain names are confusingly similar to Complainant’s marks as they all contain one of Complainant’s marks and include changes such as deleting letters, and adding generic/descriptive terms, and add a gTLD. Similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶ 4(a)(i). See Wells Fargo & Company v. VALERIE CARRINGTON, FA 1621718 (Forum July 2, 2015) (finding that the <wllsfago.com> domain name is confusingly similar to the WELLS FARGO mark as the domain name merely omits the “e” and “r” from the mark while adding the “.com” gTLD suffix.); see also 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). Here, the <snpchtchef.com> domain name removes both letters “a” from the SNAPCHAT mark and adds the generic/descriptive term “chef,” and the <justsnapit.xyz>, <piratersnap.xyz>, <snaphack.info>, and <snapviewers.net> domain names all include the SNAP mark and add one or more descriptive/generic terms, including “just,” “it,” “pirater,” “hack,” and/or “viewers.” The Panel therefore finds that the infringing domain names are confusingly similar to the SNAP and/or SNAPCHAT marks under Policy ¶ 4(a)(i).
Complainant contends that Respondent has no rights or legitimate interests in the <justsnapit.xyz>, <piratersnap.xyz>, <snaphack.info>, <snapviewers.net>, and <snpchtchef.com> domain names. Where a response is lacking, relevant information includes the WHOIS and any other assertions by a complainant regarding the nature of its relationship with a respondent. See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). The WHOIS identifies “Sara Hei” as the registrant for the <justsnapit.xyz>, <snaphack.info>, <snapviewers.net>, and <snpchtchef.com> domain names, and “Huda Beuutyy” as the registrant for the remaining <piratersnap.xyz> domain name. Complainant asserts that no evidence exists to show that Respondent has ever been legitimately known by the SNAP or SNAPCHAT marks. Panels may use these assertions as evidence of lacking rights or legitimate interests. See Navistar International Corporation v. N Rahmany, FA1620789 (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). Complainant alleges that Respondent has never been legitimately affiliated with Complainant, has never been known by the domain names prior to registration, and Complainant has not given Respondent permission to use the marks in any manner. Accordingly, the Panel agrees that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).
Next, Complainant argues that Respondent is using the disputed domain names to offer a hacking tool for Complainant’s legitimate offering to drive traffic to Respondent’s websites which also include links to advertising offers, for Respondent’s commercial gain. Using a domain name to compete with a complainant and offer commercial links to services in direct competition with a complainant generally does not amount to any bona fide offering of goods or services or a legitimate noncommercial or fair use. See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”); see also Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). Complainant provides screenshots of the resolving webpages associated with the disputed domain names. All of the domain names resolve to a website using a foreign language (allegedly French), and each contain various images along with the SNAPCHAT mark. Accordingly, the Panel may agree and find that Respondent’s use of the domain name to offer competing services and hyperlinks fails to confer rights and legitimate interests in the domain name for the purposes of Policy ¶¶ 4(c)(i) or (iii).
Further, Complainant claims that Respondent is using the infringing domain names to perpetrate a phishing scheme. Phishing schemes can evince a failure to make a bona fide offering of goods or services or legitimate noncommercial or fair use. See Google Inc. v. Pritam Singh / Pandaje Technical Services Pvt Ltd., FA 1660771 (Forum Mar. 17, 2016) (agreeing that respondent has not shown any bona fide offering of goods or services or any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii) as the respondent used the complainant’s mark and logo on a resolving website containing offers for technical support and password recovery services, and soliciting Internet users’ personal information). Complainant avers, and Respondent does not dispute, that Respondent does not actually make a legitimate offering at the resolving webpages associated with the domain names, and instead uses the domain names to gather user information through a fraudulent phishing scheme. As such, the Panel finds that Respondent’s use of the domain names in connection with a fraudulent phishing scheme fails to indicate a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).
Thus, Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant claims that Respondent uses the domain names to facilitate the unlawful access and manipulation of Complainant’s servers and offer advertising links, for commercial gain, which directly competes with Complainant’s services and is intended to disrupt Complainant’s business. Using a disputed domain name that disrupts a complainant’s business and trades upon the goodwill of a complainant for commercial gain can evince bad faith under Policy ¶¶ 4(b)(iii) & (iv). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum Jan. 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)); see also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”); see also 3M Company v. Nguyen Hoang Son / Bussiness and Marketing, FA1575815 (Forum Sept. 18, 2014) (finding that the respondent’s use of the disputed domain name to host sponsored advertisements for Amazon, through which the respondent presumably profited, indicated that the respondent had used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv)). Complainant’s provided screenshots show that all of the domain names resolve to a website in French, and each contain various images along with the SNAPCHAT mark. Accordingly, the Panel agrees that Respondent disrupts Complainant’s business and attempted to commercially benefit off Complainant’s mark in bad faith under Policy ¶¶ 4(b)(iii) & (iv).
Next, Complainant argues that Respondent uses the <justsnapit.xyz>, <piratersnap.xyz>, <snaphack.info>, <snapviewers.net>, and <snpchtchef.com> domain names to phish for user information. Using a confusingly similar domain name to phish for personal or financial information can provide evidence of bad faith registration and use within the meaning of Policy ¶ 4(a)(iii). See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”). Complainant claims, and Respondent does not dispute, that Respondent does not actually make a legitimate offering at the resolving webpages associated with the domain names, and instead uses the domain names to gather user information through a fraudulent phishing scheme. Thus, the Panel concludes that Respondent engages in an apparent phishing scheme in bad faith per Policy ¶ 4(a)(iii).
Further, Complainant argues that Respondent had actual knowledge of Complainant’s rights in the SNAP and SNAPCHAT marks at the time of registering the <justsnapit.xyz>, <piratersnap.xyz>, <snaphack.info>, <snapviewers.net>, and <snpchtchef.com> domain names. Actual knowledge of a complainant's rights in a mark prior to registering a confusingly similar domain name can evince bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). Complainant contends that Respondent’s knowledge can be inferred given the fame and notoriety associated with the marks along with Respondent’s use of the marks and logos on the resolving webpages associated with the domain names. The Panel agrees with Complainant and finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith under Policy ¶ 4(a)(iii).
Thus, Complainant has also satisfied 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 <justsnapit.xyz>, <piratersnap.xyz>, <snaphack.info>, <snapviewers.net>, and <snpchtchef.com> domain names be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: January 18, 2019
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