(iii) Respondent is 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.
Moreover, Respondent asserts that it is known by the disputed domain names but does not support its claim with any evidence.
In any case, the Policy is clear as to establish that the use must be in connection with a bona fide offering of goods and services. Hence, the mere use of a domain name or the registration of a trademark does not indicate rights or legitimate interests.
It is sometimes the case that a domain name registrant has registered a trademark in circumstances indicating that the registrant was seeking to take unfair advantage of the owner of previously existing trademark rights. See, e.g, Madonna Ciccone, p/k/a Madonna v. Dan Parisi and Madonna WIPO Case No. D2000-0847 [xi] .
This Panel agrees that mere ownership of a trademark registration is not enough to prove rights or legitimate interest in a disputed domain name. Besides the fact that no trademark registration has been proven by Respondent. In this case, it is relevant that Respondent has been trying to create a link between Respondents resolving website and Complainants trademark SNAPCHAT.
The following actions lead the Panel to conclude that Respondent knew of Complainants trademark and tried to create confusion or a connection between Respondents resolving website and Complainants trademark:
a. The use of the yellow color from Complainants trademark as the background and highlight element of the sign and other elements within the site.
d. The offering of subscriptions for access to private SNAPCHAT accounts of models that may provide adult oriented content in a manner that violates Complainants terms of service that prohibits such conduct.
The Panel finds that Respondent failed to prove rights or legitimate interests in the disputed domain names. Respondents use of the disputed domain names is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, since the disputed domain names resolve to a website that prominently displayed elements imitating Complainants colors and trademarks, which is directed to capitalize on Complainants trademarks goodwill by attracting internet users to its disputed domain names where Respondent offers pornography and access to private accounts on Complainants app, in violation of Complainants terms [xii] .
Respondent states that Respondent has rights concerning the disputed domain names, as it owns the trademark SNAPSEXT but does not provide any evidence concerning the trademark registration or registrations to support this allegation
Moreover, as evidenced by the cease and desist letters, Complainant has never authorized Respondent to use its colors, trademarks or accounts to provide pornographic or adult content.
Furthermore, Respondents arguments concerning the definition of the word SNAP, does not explain the reason for choosing the colors, trademarks and private accounts offered by Complainant.
The arguments concerning the Woosa search generic nature of the word SNAP are construed to mislead the Panel. Given the websites themselves, it is clear that Respondent chose the word SNAP to include it within the disputed domain names with previous knowledge of Complainants well-known trademark.
Respondent undoubtedly knew of Complainants trademark SNAPCHAT since Complainants trademarks and colors are included in the resolving website, but nonetheless incorporated said tradees. Thus, Respondent used the SNAP portion of the trademark SNAPCHAT to create a likelihood of confusion aimed to divert consumers to Respondents offered services.
Registration and Use in Bad Faith
According to paragraph 4(b) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith: