The Complainant is Instagram, LLC, United States of America (“United States”), represented by Hogan Lovells (Paris) LLP, France.
The Respondent is Ingramer, Wiseway SIA 40203255185, Latvia.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 23, 2021 in English. On December 27, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 27, 2021, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Registrar also indicated that the language of the Registration Agreement was French. Since, the Complaint was filed in English, the Center sent an email communication to the Complainant on December 28, 2021, inviting the Complainant to provide sufficient evidence of an agreement between the Parties for English to be the language of proceeding, a Complaint translated into French, or a request for English to be the language of proceedings. On December 31, 2021, (i) the Complainant referred to paragraphs 11-19 of the Complaint and confirmed its request for English to be the language of proceedings and (ii) the Respondent sent an email communication for French to be the language of the proceedings.
The Center verified that the 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 January 12, 2022. On January 18, 2022, the Parties sent two informal communications.
In accordance with the Rules, paragraph 5, the due date for Response was February 1, 2022. The Respondent did not submit any formal response. Accordingly, the Center informed the Parties that it will proceed to Panel Appointment on February 2, 2022.
The Center appointed Andrea Mondini as the sole panelist in this matter on February 4, 2022. 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 is Instagram, LLC, a world-renowned online photo- and video-sharing social-networking application, which was launched in 2010. The Complainant was acquired by Facebook, Inc. in 2012 (today Meta Platforms, Inc.) and has today more than 1 billion monthly active accounts worldwide.
The Complainant owns numerous trademarks for INSTAGRAM, inter alia, the United States Trademark Registration No. 4,146,057 in class 9, first used in commerce on October 6, 2010, filed on September 19, 2011 and registered on May 22, 2012.
The Complainant offers its services under “www.instagram.com”.
The disputed domain name was registered on April 11, 2012.
The disputed domain name has previously been used to redirect to the website “www.hyper.instagrambotfollower.com”. At the time of submission of the Complaint, the disputed domain name redirected to the Complainant’s official website “www.instagram.com”.
5. Parties’ Contentions A. ComplainantThe Complainant contends as follows:
The disputed domain name is confusingly similar to the INSTAGRAM trademark in which the Complainant has rights, because it incorporates this trademark in its entirety, and the addition of the word “bot” (which is an abbreviation for “robot”) is not sufficient to avoid confusing similarity.
The Respondent has no rights or legitimate interests in respect of the disputed domain name. The mark INSTAGRAM is associated with the Complainant, since the trademark INSTAGRAM has been extensively used to identify the Complainant and its services. The Respondent is not commonly known by the disputed domain name and has not been authorized by the Complainant to use this trademarks and there is no evidence of the Respondent’s use, or demonstrable preparation to use, the disputed domain name in connection with a bona fide offering of goods and services. In particular, the redirection of the disputed domain name to the Complainant’s website does not amount to a bona fide offering of goods or services.
The disputed domain name was registered in bad faith because it is obvious that the Respondent had knowledge of both the Complainant and its well-known trademark INSTAGRAM at the time it registered the disputed domain name.
The Complainant used the disputed domain in bad faith because (i) the redirection to the Complainant’s website constitutes use in bad faith insofar as the Respondent retains control over the redirection, and (ii) because the Respondent attempted to use the disputed domain name to extract payment in the amount of USD 3,000, in return of the sale of the disputed domain name.
B. RespondentThe Respondent did not submit a formal reply to the Complainant’s contentions. On December 31, 2021, the Respondent requested that the proceedings be conducted in French because he allegedly speaks French. On January 18, 2022, the Respondent requested that the proceedings be suspended, but on the same date, the Complainant requested that the proceedings be continued.
6. Discussion and Findings 6.1. Language of the ProceedingIn the present case, French is the language of the registration agreement. Pursuant to paragraph 11 of the Rules, unless otherwise agreed by the parties, the default language of the proceeding is the language of the registration agreement, subject to the authority of the panel to determine otherwise.
Paragraph 10 of the Rules vests a panel with authority to conduct the proceedings in a manner it considers appropriate while also ensuring both that the parties are treated with equality, and that each party is given a fair opportunity to present its case.
The Complainant filed the Complaint in English. On December 31, 2021, the Respondent submitted a request for French to be the language of the proceeding, and the Complainant reaffirmed its request that the proceedings be conducted in English.
The Complainant argues that: (i) the disputed domain name has been used to redirect to the website “hyper.instagrambotfollower.com”, the contents of which are entirely in English, (ii) the WhoIs record lists the Respondent as being located in Latvia, where the official language is Latvian, not French, (iii) the Respondent has replied to communications from the Complainant in English, and (iv) translate the Complaint into French would cause the Complainant to incur substantial additional costs, and would cause unwarranted delay.
Considering that that the website “www.hyper.instagrambotfollower.com” to which the disputed domain was formerly directed was entirely in English, that there is evidence that supports the inference that the Respondent has sufficient knowledge of the English language, and that the Respondent has not submitted a formal response in French (which the Panel would have considered), the Panel determines that the language of the proceeding is English.
6.2 Substantive IssuesAccording to paragraph 4(a) of the Policy, in order to succeed, a complainant must establish each of the following elements:
(i) the disputed domain name is identical or confusingly similar to the trademark or service mark in which the complainant has rights;
(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.
The Panel is satisfied that the Complainant owns trademark registrations for its INSTAGRAM trademark.
The Panel notes that the disputed domain name incorporates the INSTAGRAM trademark in its entirety. The addition of the word “bot” (which is an abbreviation for the word robot) does not prevent a finding of confusing similarity under Policy, paragraph 4(a)(i). See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8.
For these reasons, the Panel concludes that the disputed domain name is confusingly similar to the Complainant’s mark INSTAGRAM.
The first element of paragraph 4(a) of the Policy has been met.
B. Rights or Legitimate InterestsThe Complainant states it has not authorized the Respondent to use the trademark INSTAGRAM and that before notice of the dispute, there is no evidence of the Respondent’s bona fide use, or demonstrable preparation to use, the disputed domain name. The Panel does not see any contrary evidence from the record.
In the view of the Panel, the Complainant has succeeded in raising a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. In particular, the redirection of the disputed domain name to the Complainant’s website does not amount to a bona fide offering of goods or services. See Barrett Steel Limited v. Web Hosting,WIPO Case No. D2021-0055. For its part, the Respondent failed to provide any explanations as to any rights or legitimate interests. Therefore, the Panel finds that the Respondent does not have any rights or legitimate interests in the disputed domain name.
Furthermore, the nature of the disputed domain name, comprising the Complainant’s well-known trademark INSTAGRAM and the term “bot”, carries a risk of implied affiliation. See WIPO Overview 3.0, section 2.5.1.
The second element of paragraph 4(a) of the Policy has been met.
C. Registered and Used in Bad FaithThe Complainant has shown to the satisfaction of the Panel that its INSTAGRAM trademark is well known.
In the view of the Panel, it is inconceivable that the Respondent could have registered the disputed domain name without knowledge of the Complainant’s well-known trademark, considering in particular that the website “www.hyper.instagrambotfollower.com” to which the disputed domain name was formerly directed made express reference to the Complainant. In the circumstances of this case, this is evidence of registration in bad faith.
When the Complaint was filed, the disputed domain name was directed to the Complainant’s official website. The redirection to the Complainant’s website constitutes use in bad faith insofar as the Respondent retains control over the redirection thus creating a real or implied ongoing threat to the Complainant. See WIPO Overview 3.0, section 3.1.4. In addition, the Respondent attempted to use the disputed domain name to extract payment in the amount of USD 3,000, in return of the sale of the disputed domain name (Respondent claimed to have purchased the disputed domain name USD 3,000). Furthermore, it is inconceivable that the Respondent could make any good faith use of the disputed domain name.
The Panel thus finds that the disputed domain name was registered and is being used in bad faith.
The third element of paragraph 4(a) of the Policy has been met.
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,
Andrea Mondini
Sole Panelist
£Date: February 10, 2022