DECISION
Snap Inc. v. Nasir Zaman
Claim Number: FA2405002096114
PARTIES
Complainant is Snap Inc. (“Complainant”), represented by Dennis L. Wilson of Kilpatrick Townsend & Stockton LLP, California, USA Respondent is Nasir Zaman (“Respondent”), Pakistan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <snapchatapk.me> (‘the Domain Name’), registered with GoDaddy.com, LLC.
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 May 2, 2024; Forum received payment on May 2, 2024.
On May 2, 2024, GoDaddy.com, LLC confirmed by e-mail to Forum that the <snapchatapk.me> 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 May 6, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 28, 2024 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@snapchatapk.me. Also on May 6, 2024, 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 formal response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.
On May 29, 2024 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 trade mark used since 2011 for computer related services and registered for the same in, inter alia, the USA.
The Domain Name registered in 2023 has been used for a site using the Complainant’s mark in its masthead to offer an unauthorised version of the Complainant’s app using a similar colour yellow to that used by the Complainant.
The Domain Name incorporates the Complainant’s SNAPCHAT mark in its entirety adding only the generic term ‘apk’ meaning ‘Android Package’ a computer file format, and the ccTLD .me (indicating Montenegro but often used informally to mean the word ‘me’) making the Domain Name confusingly similar to the Complainant’s 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 offering an unauthorised version of the Complainant’s product 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 SNAPCHAT mark, yellow trade dress and reference to the Complanant’s app shows that the Respondent is aware of the Complainant and its rights, services and 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 confuse and attract internet users to competing commercial web sites for commercial gain. This also disrupts the Complainant’s business under Policy 4(b)(iii).
During the course of these Proceedings the Respondent offered to sell the Domain Name to the Complainant (see below).
B. Respondent
Respondent failed to submit a formal Response in this proceeding. On May 6, 2024, Forum received an email from Respondent stating:
This is not a trade mark domain check the keywords, if you want to buy the domain pay me the money and i am ready to sell the domain,
FINDINGS
The Complainant owns the SNAPCHAT trade mark used since 2011 for computer related services and registered for the same in, inter alia, the USA.
The Domain Name registered in 2023 has been used for a site using the Complainant’s mark in its masthead to offer an unauthorised version of the Complainant’s app using a similar colour yellow to that used by the Complainant as trade dress. The Respondent has offered to sell the Domain Name to the Complainant during the course of these proceedings.
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 SNAPCHAT mark (registered, inter alia, in the USA for computer related services with first use recorded as 2011), the generic term ‘apk’ meaning ‘Android Package’ a type of file format, and the ccTLD .me.
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).
Adding a ccTLD such as .me (designating Montenegro but often used informally to mean the common word me) does not serve to distinguish a domain name from a complainant’s mark. See Thomson Reuters Global Resources v Matthew Krawitz, FA 1548336 (Forum Apr. 21, 2014) (“Respondent adds the country-code top-level domain (“ccTLD”) “.co” to Complainant’s mark in the disputed domain name, which also fails to distinguish the domain name from Complainant’s 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 mark. 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 SNAPCHAT word mark as its masthead, and a similar yellow colour to that of the Complainant for a competing site offering an unauthorised version of the Complainant’s product. 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).
Further an offer to sell a domain name containing a trade mark to a Complainant for more than the Domain Name cost to register can be a further indication of lack of rights and legitimate interests. See Reese v. Morgan, FA 917029 (Forum Apr. 5, 2007) (finding that the respondent’s willingness to sell a contested domain name for more than its out-of-pocket costs provided additional evidence that Respondent had no rights or legitimate interests in the contested domain name).
The Respondent has not submitted a formal Response or rebutted the prima facie case evidenced by the Complainant as set out herein merely denying by bare assertion that the Domain Name contains a trade mark without presenting any evidence.
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 due to the use of the Complainant’s word mark as a masthead, yellow trade dress and references to the Complainant’s app on the Respondent’s web site (also showing that the Respondent has actual knowledge of the Complainant, its rights and business).
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his 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).
Further the Domain Name has been offered for sale to the Complainant the owner of the trade mark contained in the Domain Name for profit in apparent bad faith. See World Wrestling Federation Entertainment, Inc. v. Michael Bosman, WIPO Case No. D1999-0001 (“Because respondent offered to sell the Domain Name to complainant ‘for valuable consideration in excess of’ any out-of-pocket costs directly related to the Domain Name, respondent has ‘used’ the Domain Name in bad faith as defined in the Policy.”).
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 paragraphs 4(b)(i), (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 <snapchatapk.me> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: May 29, 2024
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