The Complainant is Instagram, LLC, United States of America (“United States”), represented by Hogan Lovells (Paris) LLP, France.
The Respondent is Knock Knock WHOIS Not There, LLC, United States / Britta Ivarsson Possnert, Sweden.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 3, 2021. On November 4, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 5, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on November 17, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. On the same day, the Center sent an email in English and Swedish to the Parties regarding the language of the proceeding. The Complainant filed an amended Complaint in English on November 18, 2021, and submitted a request that English shall be the language of the proceeding on the same day. The Respondent did not comment on the language of the proceeding.
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 in English and Swedish of the Complaint, and the proceedings commenced on November 26, 2021. In accordance with the Rules, paragraph 5, the due date for Response was December 16, 2021. The Respondent sent several informal email communications between November 30, and December 1, 2021. The Center informed the Parties of its commencement of panel appointment process on December 20, 2021.
The Center appointed George R. F. Souter as the sole panelist in this matter on December 28, 2021. 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 BackgroundThe Complainant operates an online photo- and video-sharing social networking application, which currently has over 1 billion monthly active users, and is the 22nd most visited website in the world, and the 30th most visited website in Sweden, where the Respondent is located, according to web information company Alexa.
Details of registrations of the Complainant’s INSTAGRAM trademark have been supplied to the Panel. These include International Registration No. 1129314, registered on March 15, 2012, United States Registration No. 4146057, registered on May 22, 2012, and European Union Registration No. 014493886, registered on December 24, 2015.
The disputed domain name was registered on December 29, 2020, and redirects Internet users to the Respondent’s personal blog website, where in some blog entries she invites users to purchase books authored by her.
5. Parties’ Contentions A. ComplainantThe Complainant alleges that the disputed domain name is confusingly similar to its INSTAGRAM trademark, containing the Complainant’s INSTAGRAM trademark in its entirety.
The Complainant alleges that the Respondent lacks rights or legitimate interests in the disputed domain name, in particular that it has never been granted permission to use its INSTAGRAM trademark in connection with a domain name, or otherwise.
The Complainant alleges that the disputed domain name was registered in bad faith, and is being used in bad faith in connection with the Respondent's personal blog website, as described above.
B. RespondentIn her several email communications to the Center, the Respondent stated that: a) she did not understand the problem; b) she would end the blog if something was wrong; and c) she was not the owner of a domain name. She also appears to have claimed that her account had been hijacked.
6. Discussion and Findings 6.1. Preliminary Issues A. Respondent’s IdentityBritta Ivarsson Possnert, the person listed as the Respondent in Section 1 above, appears to claim that the disputed domain name is not hers, implying that she is not the proper Respondent in this proceeding.
Paragraph 1 of the Rules provides that “Respondent” means the holder of a domain-name registration against which a complaint is initiated. In the present dispute, the Registrar has verified that the holder of the disputed domain name is “Britta Ivarsson Possnert”. The amended Complaint initiates this dispute against “Britta Ivarsson Possnert”.
Further, the Panel notes that the disputed domain name redirects to the Respondent’s personal blog website on which the Respondent’s email address as confirmed by the Registrar can be found for the purpose of selling her books.
In light of the above, the Panel finds that the Respondent in this proceeding is properly identified as that person, i.e., Britta Ivarsson Possnert.
B. Language of the ProceedingThe language of the Registration Agreement for the disputed domain name is Swedish. Pursuant to paragraph 11(a) of the Rules, “unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
The Complainant has requested that the language of the proceeding be English, for the following main reasons:
(i) The disputed domain name redirects to the Respondent’s personal blog website with a title in English;
(ii) The Respondent lives in Sweden where English is widely spoken and commonly used;
(iii) The disputed domain name was registered under the generic Top-Level Domain (“gTLD”) “.blog”, which is an English term;
(iv) It would be disproportionate to require the Complainant to translate and submit the Complaint in Swedish as this would result in additional expense and unnecessary delay for the Complainant.
Although the Respondent did not make any submissions regarding the language of the proceeding, the email communications sent by the Respondent were in Swedish.
Paragraph 11(a) of the Rules allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding, in order to ensure fairness to the Parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the Parties and undue delay to the proceeding.
The Panel observes that the Complaint in this proceeding was filed in English whereas the Respondent’s email communications to the Center were in Swedish. Both Parties have presented their respective views of the matter in dispute. The Panel is familiar with both English and Swedish. Therefore, the Panel considers that requiring the Complainant to translate the Complaint into Swedish would create an undue burden and delay whereas accepting the original version of both Parties’ communications without translation does not cause prejudice to either Party.
Having considered all the circumstances above, the Panel determines under paragraph 11(a) of the Rules that the language of this proceeding is English, but that it will accept communications filed in both English and Swedish.
6.2. Discussion and Findings on the MeritsParagraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the disputed domain name be transferred to the Complainant:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly SimilarIt is well established in prior decisions under the UDRP, with which the Panel agrees, that a gTLD may generally be disregarded when comparing a trademark with a disputed domain name. The Panel considers the gTLD “.blog” to be irrelevant in the circumstances of the present case, and finds that it may be disregarded here.
The Complainant’s INSTAGRAM trademark is clearly recognizable in the disputed domain name, rendering the disputed domain name confusingly similar to the INSTAGRAM mark, and the mere addition of the letter “s” to the INSTAGRAM trademark does not prevent a finding of confusing similarity, and the Panel so finds.
Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in connection with the disputed domain name.
B. Rights or Legitimate InterestsIt is the consensus view of UDRP panels, with which the Panel agrees, that a prima facie case advanced by the complainant will generally be sufficient for the complainant to be deemed to have satisfied the requirement of paragraph 4(a)(ii) of the Policy, provided the respondent does not come forward with relevant evidence demonstrating rights or legitimate interests in the domain name and the complainant has presented a sufficient prima facie case to succeed under paragraph 4(a)(ii) of the Policy.
The Panel considers the submissions put forward by the Complainant as sufficient to be regarded as a prima facie case, and although the Respondent was active in the present proceeding, the Respondent did not advance any claim or relevant evidence of her rights or legitimate interests in the disputed domain name to rebut this prima facie case.
Furthermore, the nature of the disputed domain name, incorporating the entirety of the Complainant’s well-known INSTAGRAM trademark, carries a risk of implied affiliation. Especially the additional letter “s” in the disputed domain name may lead Internet users into believing that the disputed domain name is related to the “Instagram’s blog”, i.e., the Complainant’s blog whereas the disputed domain name is being redirected to the Respondent’s personal blog. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”, section 2.5.1).
Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy, in connection with the disputed domain name.
C. Registered and Used in Bad FaithThe Panel is of the view that the finding that a respondent has no rights or legitimate interests in a disputed domain name can lead, in appropriate circumstances, to a finding of registration of a disputed domain name in bad faith. The circumstance of the present case, in which the Panel regards it as self-evident from the evidence supplied that the Complainant’s INSTAGRAM trademark was deliberately appropriated in the disputed domain name, are such that the Panel concludes that a finding of registration in bad faith is justified, in connection with the disputed domain name and so finds.
The Complainant has drawn the Panel’s attention to the circumstances and decision in Facebook Inc. v. Morgan Pasco, Real Estate Business,WIPO Case No. D2018-0575. In that case, the panel wrote that the respondent “appears to be using the domain name to attract visitors to her personal and business Facebook pages”, and found such use to be use in bad faith. In the somewhat analogous circumstances of the present case, the Panel agrees with the panel in Facebook Inc. v. Morgan Pasco, Real Estate Business, supra, as to use in bad faith because the disputed domain name redirects Internet users to the Respondent’s personal blog website, where in some blog entries she invites users to purchase books authored by her, and, accordingly, finds that the disputed domain name in this case is being used in bad faith.
Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(iii) of the Policy.
7. DecisionFor the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name,
George R. F. Souter
Sole Panelist
Date: January 11, 2022