Snap Inc. v. james Saadi / Rabii Saadi
Claim Number: FA2303002034867
Complainant is Snap Inc. (“Complainant”), represented by Emily A DeBow of Kilpatrick Townsend & Stockton LLP, California. Respondent is james Saadi / Rabii Saadi (“Respondent”), Morocco.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <espionnersnapchat.com>, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on March 7, 2023; Forum received payment on March 7, 2023.
On March 7, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <espionnersnapchat.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 9, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 29, 2023 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@espionnersnapchat.com. Also on March 9, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On April 5, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 states that it 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. 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 most three 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 fourth quarter of 2022, Snapchat had 375 million daily active users, on average. Complainant has rights in the SNAPCHAT mark through its registration in the United States in 2013. The mark is registered elsewhere around the world and it is famous.
Complainant alleges that the disputed domain name is identical or confusingly similar to its SNAPCHAT mark as it incorporates the mark in its entirety, merely adding the generic/descriptive term “espionner” (which is a French term meaning “to spy on”), along with the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its SNAPCHAT mark in any way. Respondent does not use the disputed domain name for a bona fide offering of goods or services, nor for a legitimate noncommercial or fair use. Instead, the resolving website purports to offer tools to hack the accounts of Complainant’s customers. Specifically, the home page of the resolving website (which is in the French language) provides a search bar for visitors to enter a Snapchat username to hack that person’s Snapchat account. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. The resolving website purports to offer hacking tools. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the SNAPCHAT mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark SNAPCHAT and uses it to operate and market a camera and messaging application, and storytelling platform. The mark is famous.
Complainant’s rights in its mark date back to at least 2013.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website purports to offer tools to hack the accounts of Complainant’s customers.
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 name incorporates Complainant’s SNAPCHAT mark in its entirety, merely adding the generic/descriptive term “espionner” (which is a French term meaning “to spy on”), along with the “.com” generic top-level domain (“gTLD”). Under Policy ¶ 4(a)(i), adding a generic or descriptive term along with a “.com” gTLD is insufficient in differentiating from the mark. 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); see also Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) (“The domain name contains the mark in its entirety, with only the addition of the generic letters ‘sb’ and the digits ‘2018,’ plus the generic Top Level Domain (“gTLD”) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”). Thus the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its SNAPCHAT mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name. See 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 identifies the registrant as “James Saadi / Rabii Saadi”. Thus the Panel agrees finds Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website purports to offer Internet users the ability unlawfully to hack the accounts of Complainant’s customers. Use of a disputed domain name for any unlawful purpose, including hacking user accounts, does not confer rights under Policy ¶¶ 4(c)(i) or (iii). See Airbnb, Inc. v. Nima Rahnemoon, FA 1737766 (Forum July 25, 2017) (“It is clear from the evidence that Respondent has used the site attached to the Domain Name to promote illegal unauthorized use of Complainant’s systems… As such the Panel finds that Respondent does not have rights or a legitimate interest in the Domain Name.”). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under 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 name.
Indeed, as already noted, the resolving website purports to allow users unlawfully to hack the accounts of Complainant’s customers. Such use constitutes bad faith disruption of Complainant’s business under Policy ¶ 4(b)(iii). See Snap Inc. v. Domain Admin / Whois Privacy Corp., FA1706001735300 (Forum July 14, 2017) (holding use of a disputed domain name to distribute unlawful hacking software is evidence of bad faith registration and use); see also Snap, Inc. v. Domain Admin / Whois Privacy Corp., FA1707001741287 (Forum Aug. 17, 2017) (holding use of the disputed domain name in connection with a hacking website is disruptive to complainant’s business and demonstrates respondent’s bad faith); see also Yahoo! Inc. v. Yahoozone Services / Nitin Gupta, FA 1512791 (Forum Aug. 23, 2013) (finding Respondent’s hacking services “disruptive of Complainant’s business, as well as competitive with the commercial and profit-generating endeavor that Complainant seeks to make through the services that Respondent is hacking.”). Thus, the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iii).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website refers to Complainant’s products and services. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also 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.”); see also 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). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under 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 <espionnersnapchat.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: April 5, 2023
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