Complainant is Snap Inc. of Venice, California, United States of America ("United States"), represented by Kilpatrick Townsend & Stockton LLP, United States.
Respondents are Roger Tulsa of San Diego, California, United States / WhoisGuard Protected, WhoisGuard, Inc. of Panama / Steve McMahon of Grand Rapids, Michigan, United States / Nick Hong of Singapore / Scott Chaney of Detroit, Michigan, United States / Arthur Krebs of Manlius, New York, United States / Jose Martin of Grand Island, Nebraska, United States / Lindsey Thomas of Lexington, Kentucky, United States / Joan Boucher of Fort Lauderdale, Florida, United States / Elizabeth Miller of Martinsdale, Montana, United States / James Grady of Bronx, New York, United States / Rick Jones of Toledo, Ohio, United States / Oma Jackson of Milwaukee, Wisconsin, United States / Sung Dawkins of Suisun, California, United States / Richard Ellis of Cambridge, Massachusetts, United States / Lori Johnson of Lexington, Kentucky, United States / David Tabor of Halifax, North Carolina, United States / Courtney Garcia of Middletown, Connecticut, United States / Dennis Wass of Canton, Massachusetts, United States / Malcolm Hatchett of Mexican Hat, Utah, United States / Harold Reina of Firth, Idaho, United States / Dennis Clark of Fort Myers, Florida, United States / Catherine Morrison of Fort Worth, Texas, United States / Nathaniel Kral of Homestead, Pennsylvania, United States / Breanne Valdez of Kalkaska, Michigan, United States / Whitney Mifflin of Miami, Florida, United States / Larry Pena of Tulsa, Oklahoma, United States / Jennifer Dorr of Pinellas, Florida, United States / Lee Crowder of Buffalo, New York, United States / Paul Winfrey of Brentwood, New York, United States / Frank Schweiger of Paw Paw, West Virginia, United States. 2. The Domain Names and Registrar
The disputed domain names (the "Domain Names") , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , and are registered with NameCheap, Inc. (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 23, 2018. On February 26, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On February 27, 2018, the Registrar transmitted to the Center by email its verification response disclosing registrant and contact information for the Domain Names which differed from some of the named Respondents and contact information in the Complaint. The Center sent an email communication to Complainant on March 14, 2018, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. On March 14, 2018, the Center sent a notification that the Complaint was administratively deficient. Complainant filed an amended Complaint on March 17, 2018. In response to the Center's request for clarification, Complainant filed a second amended Complaint on March 21, 2018.
The Center verified that the Complaint together with the first and second amended Complaints satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondents of the Complaint, and the proceedings commenced on March 26, 2018. In accordance with the Rules, paragraph 5, the due date for Response was April 15, 2018. Respondents did not submit any response. Accordingly, the Center notified Respondents' default on April 16, 2018.
The Center appointed Robert A. Badgley as the sole panelist in this matter on April 27, 2018. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
Complainant's Snapchat service is one of the world's leading social media platforms. It was launched in 2011, and by 2014 it had more than 70 million daily active users globally. By late 2017, this number had grown to 178 million. Complainant owns various trademark registrations for the marks SNAPCHAT and SNAP, including United States Patent and Trademark Office Reg. No. 4,345,533 for the word mark SNAP, registered on June 4, 2013.
The Domain Names were registered at various points between February 27, 2015 and August 3, 2017. Two of the Domain Names resolve to blank websites. The other 42 Domain Names resolve to websites which are similar in nature and appearance. Nearly all of these websites feature a yellow banner displaying Complainant's famous "Ghost" logo. The websites invite Internet users to hack into or spy on the account of another Snapchat user. If a visitor expresses an interest in this invitation, the visitor is directed to a web page offering a promotional offer if it completes a consumer survey. Completing the survey requires the user to enter certain personal information. According to Complainant, this is an elaborate phishing scam.
Complainant, through counsel, sent cease-and-desist letters to one or more of the named Respondents in January and February 2017. After those letters were sent, 30 of the 44 Domain Names at issue in this proceeding were registered. 5. Parties' Contentions A. Complainant
Complainant contends that it has established all three elements required under the Policy for a transfer of each of the Domain Names. B. Respondent
Respondents did not reply to Complainant's contentions. 6. Discussion and Findings 6.1. Request to Consolidate Domain Names in Single Proceeding
Complainant argues that the registrants of the 44 Domain Names involved in this proceeding should be considered as a single Respondent for purposes of this case. According to Complainant, "it is well established that 'consolidation of multiple respondents may be appropriate, under paragraphs 3(c) and 10(e) of the Rules, even where differently named domain name registrants are involved, where the particular circumstances of a given case indicate that common control is being exercised over the disputed domain names or the websites to which the domain names resolve.' Guccio Gucci S.p.A v. Andrea Hubner, Beijing Harmony Software Co.Ltd., jiang wang, brian miller, Pornsawang Chotima, Domain Whois Protection Service, Whois Agent, Jie Zhou, Jayzhou, Hi to everyday in Zhengzhou Medical Devices Co., Ltd., tian jin hua jin you xian gong si, lihong jay, hu, lizhu hu, da tou, Tamia Liu, Wang Jie, Yijiwangluo,WIPO Case No. D2012-2212."
In the Guccio case cited by Complainant, the panel held, based on the evidence of record, that "common control is being exercised over the disputed domain names". The Guccio panel relied on the following evidence to grant the complainant's request for consolidation: (1) use of common registration information such as administrative contact details, technical contact details, postal addresses, email addresses, IP addresses, and telephone and fax numbers; (2) use of the same or similar names in the registration information; (3) fact that the domain names resolved to the same or similar websites; (4) use of the same domain name servers; (5) use of the same registrars; and (6) close similarity between the disputed domain names, each of which incorporates the trademark in its entirety in conjunction with non-distinctive, generic, or geographical terms.
In another case, Speedo Holdings B.V. v. Programmer, Miss Kathy Beckerson, John Smitt, Matthew Simmons,WIPO Case No. D2010-0281, the panel held that "the consolidation of multiple registrants as respondents in a single administrative proceeding may in certain circumstances be appropriate under paragraph 3(c) or 10(e) of the Rules provided the complainant can demonstrate that the disputed domain names or the websites to which they resolve are subject to common control, and the panel, having regard to all of the relevant circumstances, determines that consolidation would be procedurally efficient and fair and equitable to all parties".
Complainant here contends, and the Panel agrees, that common control is being exercised over the Domain Names and consolidation of this Complaint as to the above-named Respondents is justified. First, the Domain Names all incorporate Complainant's SNAP trademark. Second, all but two Domain Names resolve to websites that appear to offer the means by which to hack Complainant's Snapchat app.
Third, as of the filing of the Complaint, ten of the Domain Names were registered to the same individual – Roger Tulsa – and the remaining Domain Names were registered using the same privacy protection service, namely, WhoisGuard, Inc. Subsequently, WhoisGuard, Inc. unmasked the identities of the Respondents. As of the date of the amended Complaint, 14 of the Domain Names were registered to Roger Tulsa, two were registered to a purported individual by the name of Oma Jackson, and the remaining Domain Names were registered to various purported individuals. Although these Domain Names were registered using different registrant names and cities, the email addresses for the registrants of 27 of the Domain Names follow the same pattern. Specifically, they are all Yahoo email addresses that include a name unrelated to the registrant name, followed by a year between 1970 and 1987. Further, six of these Domain Names using different individual registrant names have the same billing contact, namely, Victor Barnes.
In further support of consolidation, the record indicates that all 44 Domain Names were registered with the same Registrar, 14 share the same name server, and another 28 share a different name server from the aforementioned 14 Domain Names. Moreover, 15 Domain Names have the same ISP and nearly identical IP addresses, while another 26 Domain Names share another ISP and have the same IP address.
The substantially overlapping characteristics of these 44 Domain Name registrations, coupled with the fact that 42 of the 44 Domain Names are put to the same allegedly illicit use, make this a proper case for consolidation under the standards discussed above. The rectitude of this conclusion is reinforced by the fact that not a single named Respondent came forward to disavow any affiliation with or relationship to the other named Respondents.
Accordingly, the Panel grants Complainant's request to consolidate these Domain Names into this single proceeding. From this point forward, the Panel will refer to the Respondents as a single "Respondent". 6.2. Elements Required for Transfer under Policy
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to each of the Domain Names:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Panel concludes that Complainant has rights in the marks SNAP and SNAPCHAT through registration and extensive use in commerce. The Panel finds that each of the Domain Names is confusingly similar to the SNAP mark. In each instance, the mark SNAP is incorporated in its entirety. In each instance, additional text in the form of a descriptive word or phrase and/or a number or letter of little consequence accompanies the dominant mark SNAP.
Complainant has established Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests
For each of the Domain Names, pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Panel concludes that Respondent has no rights or legitimate interests in respect of any of the Domain Names. Respondent has not come forward to articulate or defend its motives in registering the Domain Names.
It appears from the uncontested record in this case that Respondent is using the Domain Names for nefarious purposes. For 42 of the 44 Domain Names, Respondent has caused them to resolve to a website inviting users to seek to spy on another user's Snapchat account. When a user accepts this invitation, the user is directed to a page requiring the user to complete an advertising survey in order to take advantage of a promotional offer. At that point, the user is asked to supply certain personal information. This smacks of a phishing scam. The two remaining Domain Names resolve to a blank website.
Complainant has established Policy, paragraph 4(a)(ii). C. Registered and Used in Bad Faith
For each of the Domain Names, paragraph 4(b) of the Policy provides that the following circumstances, "in particular but without limitation," are evidence of the registration and use of the Domain Name in "bad faith":
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or
(ii) that Respondent has registered the Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's website or other online location, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's website or location or of a product or service on Respondent's website or location.
The Panel concludes that Respondent has registered and used each of the Domain Names in bad faith. Given the fame of Complainant's marks, and the fact that Respondent makes use of Complainant's famous "Ghost" logo on the websites, it is obvious that Respondent had Complainant's marks in mind when registering the Domain Names. In addition, the Panel notes that, after receiving Complainant's cease-and-desist letters in January and February 2017, Respondent registered 30 of the 44 Domain Names at issue in this case.
With respect to bad faith use, it is clear that Respondent has used the Domain Names in bad faith. The Panel finds, based on this undisputed record that Respondent has sought to attract users to its websites by means of Domain Names confusingly similar to Complainant's SNAP and SNAPCHAT marks, and then sought to dupe such users into volunteering their personal information and thereby perpetrate a phishing scam. This is manifestly bad faith use within the meaning of Policy, paragraph 4(b)(iv).
With respect to the two Domain Names ( and ) which do not resolve to an active website, the Panel finds that they have been used in bad faith. Considering the use to which Respondent has put the other 43 Domain Names the Panel cannot conceive of any bona fide use to which these two inactive Domain Names could be put. Indeed, there is no need to wait around for Respondent to make an abusive use of these two Domain Names in the same manner as it has abusively used the other 42 Domain Names it controls.
Complainant has established Policy, paragraph 4(a)(iii). 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the following Domain Names be transferred to Complainant:
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Robert A. Badgley
Sole Panelist
Date: April 29, 2018
Full & Egal Universal Law Academy