WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Instagram, LLC v. Levent Aslan, Turkticaret.net
Case No. D2017-1734
1. The Parties
The Complainant is Instagram, LLC of Menlo Park, California, United States of America (“United States”), represented by Hogan Lovells (Paris) LLP, France.
The Respondent is Levent Aslan, Turkticaret.net of Istanbul, Turkey.
2. The Domain Names and Registrar
The disputed domain names <instagrm-checkpoint.com> and <lnstagramverify.com> (the “Domain Names”) are registered with Reg2C.com Inc. (the “Registrar”). The first character of the second Domain Name is the letter “L”.
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on September 8, 2017. The Center transmitted its request for registrar verification to the Registrar the same day. The Registrar replied (after a reminder) on September 19, 2017, confirming that the Domain Names are registered with it, that the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”) applies to them, and that a lock has been applied and will remain in place during this proceeding. The Registrar also provided the contact details held by it for the registrant (which accorded with the details of the Respondent set out in the Complaint); the dates of registration (May 25, 2017) and expiry (May 25, 2018) of the Domain Names, and the language of the registration agreement (Turkish). The Registrar stated that it had not received a copy of the Complaint.
On September 26, 2017, the Center wrote to the parties in English and Turkish pointing out that the Complaint had been filed in English whereas the language of the registration agreement was Turkish. The Center requested the Complainant to provide one of the following by September 29, 2017: (1) evidence of an agreement between the parties that the proceeding should be in English, or (2) the Complaint in Turkish, or (3) a request that the proceeding should be conducted in English, supported by appropriate material and arguments to the extent that these were not already included in the Complaint. The Center invited the Respondent to submit any comments or objections by October 1, 2017.
The Complainant submitted a reasoned request that the proceeding be conducted in English on September 27, 2017. The Respondent did not submit any comments or objections, despite a reminder by the Center in English and Turkish on September 28, 2017.
The Center verified that the Complaint satisfied the formal requirements of the 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 paragraphs 2 and 4 of the Rules, the Center formally notified the Respondent of the Complaint with covering notes in English and Turkish, and the proceeding commenced on October 2, 2017. In accordance with paragraph 5 of the Rules, the due date for Response was October 22, 2017. The Respondent did not submit a Response by this date and the Center notified the Respondent’s default.
On October 26, 2017, the Center informed the parties in English and Turkish that it had omitted to send the Complaint to an email address that the Complainant had identified as having been used by the Respondent prior to the Complaint. Accordingly the Center re-notified the Complaint including to this email address and extended the time for the Response to October 31, 2017. The Respondent still did not submit any response. Accordingly, the Center notified the Parties on November 2, 2017 that it would proceed to panel appointment.
The Center appointed Jonathan Turner as the sole panelist in this matter on November 8, 2017. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules. Having reviewed the file, the Panel is satisfied that the Complaint complied with applicable formal requirements (save as mentioned and waived below), was duly notified to the Respondent, and has been submitted to a properly constituted Panel in accordance with the UDRP, the Rules and the Supplemental Rules.
4. Procedural Rulings
Under paragraph 11 of the Rules, unless otherwise agreed between the parties or otherwise specified in the registration agreement, the language of the proceedings shall be that of the registration agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the proceeding.
In its Complaint and in its reply to the Center’s communication regarding the language of the proceeding, the Complainant has asked the Panel to determine that English should be the language of the proceeding. The Complainant submits that this would be appropriate since the Domain Names incorporate English words. The Complainant adds that the Respondent responded through Turkish lawyers to a cease and desist letter written in English, thus indicating that he was able to understand English.
The Respondent has not objected to or commented on this issue or taken any other part in the proceeding, despite being invited to address this issue by communications from the Center in Turkish. Furthermore, the Respondent has informed the Complainant through Turkish lawyers that he has no knowledge of the Domain Names and was not responsible for their registration by a third party using his personal information. In these circumstances, the Panel considers that no useful purpose will be served by holding the proceeding in Turkish and requiring the Complainant to incur the expense of translating the Complaint and other documents. The Panel accordingly determines under paragraph 11 of the Rules that the language of the proceeding shall be English.
The grounds of the Complaint run to some 5110 words, thus slightly exceeding the word limit in paragraph 10(a) of the Supplemental Rules. The Panel waives this non-compliance since it is relatively small.
5. Factual Background
The Complainant provides a leading online photograph and video sharing social networking application under the mark INSTAGRAM. It has over 700 million monthly active users and 375 million daily active users, sharing more than 95 million photographs and videos per day. Its website at “www.instagram.com” is the 18th most visited website in the world and the 11th most visited website in Turkey, according to information provided by Alexa. The application is available in over 31 languages, including Turkish, and has about 30 million users in Turkey.
The Complaint has registered the mark INSTAGRAM in the United States on May 22, 2012 (claiming first use on October 6, 2010), in Turkey on May 20, 2015, and in the European Union on December 24, 2015.
The Complainant offers certain public figures, celebrities and brands the possibility of obtaining a “verified badge” for their INSTAGRAM accounts, in order to confirm to their followers that these are their genuine, authorised accounts.
The Domain Names do not resolve to any active web page. However, certain users of the Complainant’s application, including well-known celebrities in Turkey, have received phishing emails from the email address “…@lnstagramverify.com” stating that their accounts had been verified and inviting them to confirm the verification by clicking on a link. The accounts of those who clicked on the link were hacked and they were asked for money to regain control of them.
The Complainant’s lawyers sent the Respondent a cease-and-desist letter on July 10, 2017. The Respondent’s lawyers informed the Complainant’s lawyers in Turkey that the Respondent denied all knowledge of the Domain Names, which had been registered by a third party using his personal information. The Respondent was not willing to transfer the Domain Names since he was not responsible for their registration.
6. Parties’ Contentions
The Complainant contends that the Domain Names are confusingly similar to its registered trademark, INSTAGRAM; that the Respondent has no rights or legitimate interests in the Domain Names; and that they were registered and are being used in bad faith to defraud users of the Complainant’s application through phishing emails. The Complainant requests a decision that the Domain Names be transferred to it.
The Respondent did not submit a Response in this proceeding, but the Panel takes into account his statement to the Complainant’s lawyers in Turkey that he did not register the Domain Names.
7. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, the Complainant must prove: (i) that the Domain Names are identical or confusingly similar to a mark in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Names; and (iii) that the Domain Names have been registered and are being used in bad faith. It is appropriate to consider each of these requirements in turn.
In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences as it considers appropriate from the Respondent’s default in failing to file a response. This includes the acceptance of plausible evidence of the Complainant which has not been disputed.
Panels have held in a number of cases that it is unnecessary to address the substantive issues further where the Respondent has consented on the record to the transfer of the disputed domain name or names: see section 4.10 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
In this case, the Respondent has not disputed the Complaint and has disclaimed responsibility for the registration of the Domain Names. However, the Respondent has not consented to transfer the Domain Names and his statements are not on the record; they are merely reported in the Complaint. In these circumstances, the Panel considers that it is appropriate to address the substantive requirements of the UDRP, albeit briefly since they have not been disputed and have been largely conceded by the Respondent.
A. Identical or Confusingly Similar
The Complainant clearly has rights in the mark INSTAGRAM. The Panel finds that the Domain Names are confusingly similar to this mark, from which they differ only in miss-spellings and the addition of generic words and the generic top level domain (“gTLD”) suffices. The evidence shows that they are intended to confuse and have confused users of the Complainant’s application. The first requirement of the UDRP is satisfied.
B. Rights or Legitimate Interests
It is clear from the evidence that the Respondent has no rights or legitimate interests in respect of the Domain Names and the Respondent has disclaimed any such rights or legitimate interests. The Panel finds that the second requirement of the UDRP is satisfied.
C. Registered and Used in Bad Faith
It may be noted that for the purpose of the third requirement of the UDRP it suffices that the disputed domain name was registered and is being used in bad faith, even if the named respondent was not responsible for the registration and use of the disputed domain name.
In this case, whether the Domain Names were registered and operated by the Respondent or a third party, the undisputed evidence shows that they have been used to attempt to defraud users of the Complainant’s application through phishing emails. This is clear evidence that they were registered and are being used in bad faith.
Alternatively, the person who registered and operates the Domain Names may be regarded as the true Respondent, and it is clear that this person registered and is using them in bad faith.
The third requirement of the UDRP is satisfied and it is appropriate to order that the Domain Names be transferred to the Complainant.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Names <instagrm-checkpoint.com> and <lnstagramverify.com> be transferred to the Complainant.
Date: November 21, 2017