WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Instagram, LLC v. Ellie Walker
Case No. D2018-0669
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 Ellie Walker of Wright Views, Lake Martin, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”).
2. The Domain Name and Registrar
The disputed domain name <instagram-helpsupport.com> (the “Domain Name”) is registered with 1&1 Internet SE (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 26, 2018. On March 26, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On April 3, 2018, 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 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 April 11, 2018. In accordance with the Rules, paragraph 5, the due date for Response was May 1, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 2, 2018.
The Center appointed Wolter Wefers Bettink as the sole panelist in this matter on May 25, 2018. 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 photo and video sharing social networking application, which was acquired by Facebook in 2012. Currently, the Complainant’s application has over 700 million monthly active users and 400 million daily active users, with more than 95 million photos and videos shared per day by its users. The Complainant’s website available at <instagram.com> is ranked the 15th most visited website in the world and the 13th in the United Kingdom. The Complainant’s application is currently available in over 31 languages, and is the 4th most downloaded application in the world and the 5th in the United Kingdom.
The Complainant owns a number of trade mark registrations in the term INSTAGRAM around the world, in connection with an online photo-sharing software, such as:
- European Union Trade mark No. 014493886, registered on December 24, 2015;
- United States Trade mark No. 4146057, registered on May 22, 2012 (first use in commerce on October 6, 2010);
- United States Trade mark No. 4170675, registered on July 10, 2012 (first use in commerce on October 6, 2010);
- International Trade mark No. 1129314, registered on March 15, 2012.
These are together referred to hereafter as the “Trade Marks”.
The Domain Name was registered on February 24, 2018.
The Complainant submits that the Domain Name was used by the Respondent in connection with so-called phishing activities. Specifically, the Respondent sent an email which was particularly configured so that the sender of the email appeared as “The Instagram Team”. The email contained a “Verify Account” link purportedly allowing Instagram users to request a “verified badge” for their profiles and thus redirecting them to a website to which the Domain Name previously resolved. The website had the same “look and feel” as the Complainant’s official Help Centre available at “https://help.instagram.com” and provided an “Approved Account Participation Form” where Instagram users were asked to disclose their confidential account information, including their user name, account email and account password.
5. Parties’ Contentions
The Complainant submits it has rights in the Trade Marks, consisting of the mark INSTAGRAM and that the Domain Name is confusingly similar to the Trade Marks, as it identically reproduces them in their entirety. Furthermore, the Complainant submits that the addition of the term “-helpsupport” reinforces the confusing similarity with the Complainant’s INSTAGRAM trade mark as the Complainant provides its official support service through the Instagram Help Centre available at “https://help.instagram.com/”, making it very likely for users to believe that the Domain Name is related to the Complainant’s help/support service.
According to the Complainant the Respondent has no rights or legitimate interests in the Domain Name, as the Respondent is not a licensee of the Complainant, nor has it been otherwise allowed by the Complainant to make any use of the Trade Marks. Neither can the Respondent assert that it has made or is currently making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue, the Complainant submits, in view of the use of the Domain Name to point to a website purportedly allowing Instagram users to request “verified badges” for their profiles by providing their confidential account information. Furthermore, the Complainant states, the fact that the Domain Name falsely suggests affiliation with the Complainant excludes any legitimate noncommercial or fair use of the Domain Name.
The Complainant asserts that the Domain Name was registered in bad faith, since, given the Trade Marks’ renown and goodwill worldwide, it would be inconceivable for the Respondent to argue that she did not have knowledge of the Trade Marks at the time of registration of the Domain Name in 2018 and the Respondent’s subsequent use of the Domain Name to point to a malicious website mimicking the Complainant’s official Help Centre leaves no doubt as to the Respondent’s awareness of the Trade Marks at the time of registration. The Complainant further submits that the Respondent’s bad faith at the time of registration of the Domain Name is demonstrated by the provision of false contact information in the WhoIs record. To the best of the Complainant’s knowledge, the Respondent’s address displayed in the WhoIs record does not exist. Finally, the Complainant asserts, the website to which the Domain Name was previously pointing had the same “look and feel” of the Complainant’s official Help Centre which indicates that the Respondent could simply not have chosen the Domain Name for any reason other than to deliberately cause confusion amongst Internet users as to the source of the website in order to facilitate her phishing scam for commercial gain, which constitutes bad faith. In addition, the Complainant submits on the basis of these facts that the Respondent was using the Domain Name to intentionally attract, for commercial gain, Internet users to its website – e.g. to harvest personal data from users as result of the intentionally created confusion with the Trade marks as to the source, sponsorship, affiliation or endorsement of the website, in accordance with paragraph 4(b)(iv) of the Policy.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant has shown that it has registered rights in the Trade Marks.
The Domain Name is confusingly similar to the Trade Marks as it incorporates the mark INSTAGRAM, of which the Trade Marks consist, in its entirety. The addition of the generic words “help” and “support” does not avoid a finding of confusing similarity (see also WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8; see also, inter alia, TPI Holdings, Inc. v. Carmen Armengol, WIPO Case No. D2009-0361, and Philip Morris USA Inc. v. 1&1 Internet Limited / Mehjabeen Neesa, WIPO Case No. D2017-1451).
The gTLD “.com” is typically disregarded under the confusing similarity test, since it is a technical registration requirement (see WIPO Overview 3.0, section 1.2).
Therefore, the Panel finds that the Domain Name is confusingly similar to the Trade Marks in which the Complainant has rights.
B. Rights or Legitimate Interests
The Complainant has to make out at least a prima facie case that the Respondent does not have rights or legitimate interests in the Domain name (WIPO Overview 3.0, section 2.1).
Based on the evidence and the undisputed submissions of the Complainant, the Panel concludes that the Respondent has not received the Complainant’s consent to use the Trade Marks as part of the Domain Name, is not commonly known by the Domain Name, has no connection or affiliation with the Complainant and has not acquired trade mark rights in the Domain Name. The Respondent’s uses of the Domain Name in the present case for a website purportedly allowing Instagram users to request “verified badges” for their profiles by providing their confidential account information (apparently to harvest such confidential data for commercial gain), having the same “look and feel” as the Complainant’s official Help Centre, falsely suggests affiliation with the Complainant and excludes any finding of a bona fide offering of goods or services, or a legitimate noncommercial or fair use.
In view of the above, the Panel concludes that the Complainant has established that the Respondent has no rights or legitimate interests in the Domain Name.
C. Registered and Used in Bad Faith
Based on the information and the evidence provided by the Complainant, the Panel finds that at the time of registration of the Domain Name the Respondent was or should have been aware of the Trade Marks, since:
- the Respondent’s registration of the Domain Name occurred more than seven years after the registration of the earliest of the Trade Marks;
- the Trade Marks are famous throughout the world;
- the element INSTAGRAM of which the Trade Marks consist, is incorporated in its entirety in the Domain Name, and does not appear to be a dictionary word, nor a name of which it is likely that a registrant would spontaneously or accidentally think of;
- use of a “look and feel” for the website to which the Domain Name resolved similar to that of the Complainant’s official Help Centre;
- use of false contact information in the WhoIs record for the Domain Name.
Under these circumstances, the Panel concludes that the Domain Name has been registered in bad faith.
With regard to bad faith use, the Panel considers the fact that the Domain Name resolved to a website with the same “look and feel” as the Complainant’s official Help Centre, containing an “Approved Account Participation Form” where Instagram users were asked to disclose their confidential account information, including their user name, account email and account password, apparently to harvest these personal data for commercial gain, is a clear indication that the Domain Name was being used to intentionally attempt to attract, for commercial gain, Internet users to the website or other online location by creating a likelihood of confusion with the Trade Marks as to the source, sponsorship, affiliation or endorsement of the website to which the Domain Name resolves, within the meaning of paragraph 4(b)(iv) of the Policy.
Therefore, the Panel concludes that the Domain Name has been registered and is being used in bad faith.
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 name <instagram-helpsupport.com> be transferred to the Complainant.
Wolter Wefers Bettink
Date: June 7, 2018