The Complainant is Instagram, LLC, United States of America, represented by Hogan Lovells (Paris) LLP, France.
The Respondents are Fahrettin Turgut and Arif Zihnioglu, Takipcizevki, Turkey (cumulatively referred to as the “Respondent”). 2. The Domain Names and Registrar
The disputed domain names The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 20, 2020. On October 20, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On October 20, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 23, 2020 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on October 27, 2020. The Center verified that the Complaint together with the amended Complaint 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 the Respondent of the Complaint, and the proceedings commenced on October 30, 2020. In accordance with the Rules, paragraph 5, the due date for Response was November 19, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 20, 2020. The Center appointed Knud Wallberg as the sole panelist in this matter on November 25, 2020. 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 The Complainant is an online social networking platform. Complainant currently has over 1 billion monthly active users and 500 million daily active users, with more than 95 million photos and videos shared per day. According to the web information company Alexa the Complainant´s website available at “www.instagram.com” is ranked as the 25th most visited website in the world, 17th in Colombia and 16th in Turkey, where the Respondent is based. The Complainant is the owner of the trademark INSTAGRAM, which is registered in a large number of jurisdictions including in Turkey under Turkish Trademark Registration No. 2013 74099, registered on May 20, 2015 for various goods and services, in particular International Classes 9, 38, 41, 42 and 45. The Complainant is also the owner of numerous domain names consisting of the term INSTAGRAM under generic and country code Top-Level Domain (“gTLD” and “ccTLD”, respectively) extensions. The disputed domain names The disputed domain name The Complainant submits that the disputed domain names are confusingly similar to the trademarks in which it has rights. The disputed domain name The Complainant further submits that the Respondent has no rights or legitimate interests in the disputed domain names. The Respondent is not a licensee of the Complainant, nor has it been otherwise allowed by the Complainant to make any use of the Complainant's trademarks. The Complainant further asserts that the Respondent is unable to invoke any of the circumstances set out in paragraph 4(c) of the Policy, to demonstrate rights or legitimate interests in the disputed domain names just as the there is no evidence to suggest that the Respondent is commonly known by the disputed domain names or that the Respondent is making a legitimate noncommercial or fair use of the disputed domain names. Finally, the Complainant submits that the disputed domain names were registered and are being used in bad faith. Given the Complainant's renown and goodwill worldwide, it would thus be inconceivable for the Respondent to argue that it did not have knowledge of the Complainant's trademark when it registered the disputed domain names in 2018. The Complainant requests that although the Complaint is filed against two different Respondents, it shall be consolidated. Despite minor differences in the Registrant Name, the Complainant thus notes that the Registrant Organization, Registrant Street, Registrant City, Registrant Postal Code, Registrant Country, Registrant Phone Number, and Registrant Email Address are identical for all the disputed domain names. In addition, the disputed domain names are all registered with the same Registrar, having been registered in the period between October 27, 2018 and November 5, 2018. As set out in the Complaint, the disputed domain names all target the Complainant's INSTAGRAM trademark in a similar fashion, albeit that none of the disputed domain names resolves to an active website. The Complainant therefore claims that it is clear that the disputed domain names are registered to the same person, or are subject to common control, such that the Complainant is justified in filing a single consolidated Complaint against two nominally distinct Registrants. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Preliminary Matter: Consolidation Before addressing the three elements of the Policy, the Panel must first address a procedural issue, namely whether to accept in the present procedure that the Complaint against the two distinct Respondents, may be consolidated. As it is stated in the first paragraph of section 4.11.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) that “Where a complaint is filed against multiple respondents, panels look at whether (i) the domain names or corresponding websites are subject to common control, and (ii) the consolidation would be fair and equitable to all parties. Procedural efficiency would also underpin panel consideration of such a consolidation scenario”. Paragraph two of the section then lists several factors that UDRP panels have considered in determining whether a consolidation is appropriate. In this case, the disputed domain names are all constructed in the same manner and according to the WhoIs information revealed by the Registrar, the two named Respondents share the exact same contact details. Based on the above, the Panel finds that the Complainants have established a prima facie case that the Complaint can be consolidated. Neither of the two Respondents have rebutted this consolidation. Consequently, the Panel finds that it is appropriate to consider the Complaint filed against both Respondents in the present proceeding, which will therefore be referred to as the “Respondent” below. 6.2. Substantive Matters of the Complaint According to paragraph 15(a) of the Rules the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Paragraph 4(a) of the Policy directs that a complainant must prove each of the following: (i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) that the respondent has no rights or legitimate interests in respect of the domain name; and (iii) that the domain name has been registered and is being used in bad faith. Paragraph 4(a) of the Policy states that the burden of proving that all these elements are present lies with the Complainant. At the same time, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules, or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate. A. Identical or Confusingly Similar The Panel finds that the disputed domain names are all confusingly similar (in the sense of the Policy) to the Complainant’s registered trademark INSTAGRAM. The disputed domain name The gTLDs “.support”, “.com” and “.team” are standard registration requirements and as such generally disregarded under the first element confusing similarity test. See section 1.11.1 of the WIPO Overview 3.0. The Panel finds that the conditions in paragraph 4(a)(i) of the Policy are therefore fulfilled in relation to all the disputed domain names. B. Rights or Legitimate Interests It is clear from the facts of the case that the Complainant has not licensed or otherwise permitted the Respondent to use its trademark and given the circumstances of this case, the Panel finds that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain names. The Respondent has not produced, and there is no evidence of the types of circumstances set out in paragraph 4(c) of the Policy that might give rise to rights or legitimate interests in the disputed domain names on the part of the Respondent in these proceedings. Consequently, the Panel finds that the condition in paragraph 4(a)(ii) of the Policy is also fulfilled. C. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy requires the Complainant to prove both registration and use of the disputed domain name in bad faith. Paragraph 4(b) of the Policy provides examples of circumstances which shall be evidence of registration and use in bad faith: (i) circumstances indicating that the holder has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the holder’s documented out-of-pocket costs directly related to the domain name; or (ii) the holder 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 the holder has engaged in a pattern of such conduct; or (iii) the holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, the holder has intentionally attempted to attract, for commercial gain, Internet users to the holder’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the holder’s website or location or of a product or service on the holder’s website or location. Accordingly, for the Complainant to succeed, the Panel must be satisfied that the disputed domain names have been registered and are being used in bad faith. Given the circumstances of the case, in particular the extent of use and reputation of the Complainant’s trademark INSTAGRAM, it is inconceivable to the Panel in the current circumstances that the Respondent registered the disputed domain names without prior knowledge of the Complainant and the Complainant’s marks. Further, the Panel finds that the Respondent could not have been unaware of the fact that the disputed domain names he chose could attract Internet users in a manner that is likely to create confusion for such users. The Panel therefore finds that the disputed domain names were registered in bad faith. The fact that the disputed domain names appear not to have been used actively does not prevent a finding of bad faith use. As it is stated in section 3.3 of the WIPO Overview 3.0: “From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or ‘coming soon’ page) would not prevent a finding of bad faith under the doctrine of passive holding.” Noting that the disputed domain names all incorporate a well-known trademark, that no response has been filed, that there appears to be no conceivable good faith use that could be made by the Respondent of the disputed domain names and considering all the facts and evidence, the Panel finds that the requirements of paragraph 4(a)(iii) of the Policy are also fulfilled in this case. 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 disputed domain names, Knud Wallberg
Sole Panelist
Date: December 18, 2020
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