DECISION

 

Snap Inc. v. jeronie sila

Claim Number: FA2310002065981

 

PARTIES

Complainant is Snap Inc. ("Complainant"), represented by Emily A. DeBow of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is jeronie sila ("Respondent"), Philippines.

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <snapbreaker.com>, ('the Domain Name') registered with Internet Domain Service BS Corp.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Dawn Osborne as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on October 12, 2023; Forum received payment on October 12, 2023.

 

On October 16, 2023, Internet Domain Service BS Corp confirmed by e-mail to Forum that the <snapbreaker.com> Domain Name is registered with Internet Domain Service BS Corp and that Respondent is the current registrant of the name. Internet Domain Service BS Corp has verified that Respondent is bound by the Internet Domain Service BS Corp 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 October 17, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 6, 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@snapbreaker.com. Also on October 17, 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 November 7, 2023 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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.

 

RELIEF SOUGHT

Complainant requests that the Domain Name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

The Complainant owns the SNAPCHAT and SNAP trade marks used since 2011 and a trade mark for its ghost logo for computer related services all registered in, inter alia, the USA.

 

The Domain Name registered in 2015 has been used for a site offering competing software services purporting to allow access to snapchat accounts featuring the Complainant's SNAP and SNAPCHAT trade marks and very similar ghost graphic with a similar colour yellow to that used by the Complainant. The site is gathering information from Internet users for phishing purposes.

 

The Domain Name incorporates the Complainant's SNAP mark in its entirety adding only the generic word 'breaker' and the gTLD .com making the Domain Name confusingly similar to the Complainant's SNAP trade mark.

 

The Respondent is not commonly known by the Domain Name and is not authorised by the Complainant. Using a trade mark to drive traffic to a competing web site and gathering Internet user details is not a bona fide offering of goods or services or a legitimate non commercial fair use. The Respondent does not have a right or legitimate interest in the Domain Name.

 

The use on the Respondent's web site of the Complainant's SNAP and SNAPCHAT marks and similar ghost logo used with a similar yellow to that used by the Complainant shows that the Respondent is aware of the Complainant and its business. The Respondent's conduct is registration and use in bad faith under Policy 4(b)(iv) as it is using a confusingly similar domain name to attract internet users to its competing commercial web site. This also disrupts the Complainant's business under Policy 4(b)(iii). Gathering user details indicates bad faith and phishing. The Respondent removed the ghost graphic after being contacted by the Complainant which also indicates bad faith.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Complainant owns the SNAPCHAT and SNAP trade marks used since 2011 and a trade mark for its ghost logo for computer related services all registered in, inter alia, the USA.

 

The Domain Name registered in 2015 has been used for a site offering competing software services purporting to allow access to snapchat accounts featuring the Complainant's SNAP and SNAPCHAT trade marks and very similar depictions of a ghost used with a similar colour yellow to that used by the Complainant. The site is collecting personal information from Internet users.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

The Domain Name consists of the Complainant's SNAP mark (registered, inter alia, in the USA for computer related services with first use recorded as 2011), the generic word 'breaker' and the gTLD.com.

 

Previous panels have found confusing similarity when a respondent merely adds a generic term to a Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The Panel agrees that the addition of the generic term 'breaker' to the Complainant's SNAP mark does not distinguish the Domain Name from it pursuant to the Policy.

 

The gTLD .com does not serve to distinguish the Domain Name from the Complainant's SNAP mark. See Red Hat Inc v Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's RED HAT mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).

 

Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose to a mark in which the Complainant has rights.

 

Rights or Legitimate Interests

The Complainant has not authorised the use of its marks. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA 1574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).

 

The web site attached to the Domain Name uses the Complainant's SNAP and SNAPCHAT word marks and ghost logo and a similar yellow colour to that of the Complainant for a competing site purporting to offer access to Snapchat accounts. It does not make it clear that there is no commercial connection with the Complainant. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. See Am. Intl Group Inc v Benjamin, FA 944242 (Forum May 11, 2007) (finding that the Respondent's use of a confusingly similar domain name to advertise real estate services which competed with the Complainant's business did not constitute a bona fide use of goods and services).

 

The site appears to be gathering information for phishing purposes. Under Policy 4(c)(i) and (iii), the use of a disputed domain name in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use. See Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) ("On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii).").

 

 

The Respondent has not answered the Complaint or rebutted the prima facie case evidenced by the Complainant as set out herein.

 

As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.

 

Registration and Use in Bad Faith

In the opinion of the panelist the use made of the Domain Name in relation to the Respondent's site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant. The use of the Complainant's word marks, ghost logo and yellow trade dress and the reference to the Complainant's services on the Respondent's web site shows that the Respondent is aware of the Complainant.

 

Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site and services offered on it likely to disrupt the business of the Complainant. (See Asbury Auto Group Inc v Tex. Int'l Prop Assocs, FA 958542 (Forum May 29, 2007) finding that the respondent's use of the disputed domain name to advertise car dealerships that competed with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of those competing dealerships and was therefore evidence of bad faith and use).

 

Respondent uses the Domain Name to engage in apparent phishing. The use of a disputed domain name in furtherance of a phishing scheme is considered evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) ("[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses that to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).").

 

As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iii) and (iv).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <snapbreaker.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Dawn Osborne, Panelist

Dated: November 7, 2023