WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Sniffies, LLC v. See PrivacyGuardian.org / Serghei Scelcunov
Case No. D2021-4055
1. The Parties
The Complainant is Sniffies, LLC, United States of America (“United States”), represented by Hanson Bridgett LLP, United States.
The Respondent is See PrivacyGuardian.org, United States / Serghei Scelcunov, Republic of Moldova.
2. The Domain Name and Registrar
The disputed domain name <sniffmap.app> is registered with NameSilo, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 4, 2021. On December 6, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 6, 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 December 10, 2021 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on December 10, 2021.
The Center verified that the Complaint together with the amendment to 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 December 13, 2021. In accordance with the Rules, paragraph 5, the due date for Response was January 2, 2022. The Respondent did not submit any formal response. The Center received from the Respondent a communication by email on December 15, 2021. On January 4, 2022, the Center informed the Parties that it would proceed to panel appointment.
The Center appointed Adam Taylor as the sole panelist in this matter on January 13, 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.
The Complainant submitted a supplemental filing on January 14, 2022.
4. Factual Background
Since 2017, the Complainant has operated a gay male online dating and social meetup web app branded “Sniffies” via a website at “www.sniffies.com”.
The Complainant’s platform, which is available in the United States and many other countries, allows users to share their geographic location and see other users on a map based on their geographic proximity. The platform hosts some 18 million user sessions per month with an average of 20 minutes duration and 40 page-views per session.
The disputed domain name was registered on April 6, 2021.
As of November 19, 2021, the disputed domain name was used for a website headed “Sniffies App – Map Based Gay Hookup Com” and “Sniffies”. The website purported to provide information about the Complainant’s service but contained “Download App” and “Start Search” buttons directing site visitors to a competing website at “www.gaystryst.com”.
Following the filing of the Complaint, the Respondent altered the site by changing the above headings to read “Sniff Map – Gay hook apps reviews” and “Sniff Map” respectively, as well as by substituting “Sniff” for “Sniffies” in various other places and adding the following disclaimer near the top of the page: “Note: We are not related to the site sniffies .com[. A]lso we are not their affiliates.”
5. Parties’ Contentions
The following is a summary of the Complainant’s contentions:
The Complainant possesses strong common law trade mark rights under the laws of the United States, and the many other countries in which the Complainant operates, by virtue of the widespread use, promotion and recognition of its mark “Sniffies”, since long before registration of the disputed domain name.
The disputed domain name is confusingly similar to the Complainant’s mark. The primary and dominant syllable of the disputed domain name is “sniff,” which is a mere truncation of the Complainant’s mark. The additional word “map” is descriptive of the Complainant’s map-based service. The Top-Level Domain (“TLD”) of the disputed domain name is “.app”, denoting mobile applications; the Complainant markets itself as a web app.
The Respondent lacks rights or legitimate interests in respect of the disputed domain name.
The Complainant has not licensed the Respondent to use its marks.
The Respondent is not commonly known by the disputed domain name or the terms “sniff” or “sniffies”.
The Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services, nor in a noncommercial or fair and legitimate manner. Rather, the Respondent has used the disputed domain name to deceive Internet users seeking the Complainant’s service and to divert them to a competing and/or fraudulent website.
The disputed domain name was registered and is being used in bad faith.
The Respondent deliberately set out to disrupt the Complainant’s business by deceiving Internet users and misdirecting them to a competing website where they are asked to enter credit card information in what may be a fraudulent scheme.
The Respondent has impersonated the Complainant and concealed the identity of the registrant of the disputed domain name.
In these circumstances, the Panel should reject any attempt by the Respondent to claim that it has good faith plans to use the disputed domain name.
The following is a summary of the Respondent’s contentions:
The disputed domain name does not violate the Complainant’s rights as it is significantly different from the Complainant’s <sniffies.com> domain name.
The Respondent states that “it did not see the information that it is forbidden to use the ‘sniff map’ phrase in the domain name. Do you have it ?”
While the Complainant may have been confused by the Respondent’s use of the word “sniffies” on its website, the Respondent nonetheless has the right to review “any sites on the Internet”.
The Respondent undertakes that it will immediately remove any information from its website that may mislead users into thinking “that our site is a brand”.
The Respondent is interested in a peaceful resolution of this dispute.
6. Discussion and Findings
Under the Policy, the Complainant is required to prove on the balance of probabilities that:
- the disputed domain name is identical or confusingly similar to a trade mark in which the Complainant has rights;
- the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
- the disputed domain name has been registered and is being used in bad faith.
A. Preliminary - Supplemental Filing
The Complainant has made an unsolicited supplemental filing.
Section 4.6 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) states that UDRP panels have repeatedly affirmed that the party submitting an unsolicited supplemental filing should clearly show its relevance to the case and why it was unable to provide the information contained therein in its complaint or response, e.g., owing to some “exceptional” circumstance.
In this case, the Panel has decided to admit the supplemental filing insofar as it deals with changes to the Respondent’s website following the filing of the Complaint (addressed in section 4 above) and objects to admissibility of the Response, but to disallow the remainder of the filing which either repeats the Complaint or consists of standard rebuttal.
B. Preliminary - Informal Response
The Response is in the form of an email to the Center, which does not comply with the formal requirements set out in paragraph 5 of the Rules. For example, there is no statement of truth. The Panel has nonetheless decided to admit the Response in accordance with its powers under paragraph 10(d) of the Rules because the Respondent’s submission assists the Panel’s assessment of the Respondent’s motive for registering the disputed domain name. The Panel will bear in mind the Response’s non-compliance with the Rules, including in particular the absence of a statement of truth, when weighing up the Respondent’s assertions in this case.
C. Identical or Confusingly Similar
The Complainant has established unregistered trade mark rights for purposes of the Policy in the mark “Sniffies” by virtue of its extensive, international, use of that term.
The Respondent argues that the Complainant has not demonstrated any rights in the term “sniff map”. However, for the purpose of the first element, the Complainant is not required to establish rights in a name that is identical to the disputed domain name; it is sufficient if the Complainant’s mark is “confusingly similar”.
The Respondent further argues that the disputed domain name is significantly different from the Complainant’s mark.
However, section 1.7 of WIPO Overview 3.0 makes clear that the first element functions primarily as a standing requirement. The test for confusing similarity involves a reasoned but relatively straightforward comparison between the complainant’s trade mark and the disputed domain name. Where at least a dominant feature of the relevant mark is recognisable in the disputed domain name, it will normally be considered confusingly similar to that mark for purposes of UDRP standing. See also section 1.8 of WIPO Overview 3.0, which makes clear that the addition of descriptive terms would not prevent a finding of confusing similarity under the first element.
Furthermore, as explained in section 1.7 of WIPO Overview 3.0, the overall facts and circumstances of a case, including relevant website content, may support a finding of confusing similarity in certain situations, particularly where it appears that the respondent registered the domain name precisely because it believed that the domain name was confusingly similar to a mark held by the complainant.
In this case, the disputed domain name consists of the term “sniff”, a dominant feature of the Complainant’s mark, followed by the descriptive word “map”. And it is clear from the content of the Respondent’s website, described in section 3 above, that the Respondent selected the disputed domain name precisely because it believed that it was confusingly similar to the Complainant’s mark; indeed, the word “map” is particularly apposite to the Complainant’s map-based service.
For the above reasons, the Panel concludes that the disputed domain name is confusingly similar to the Complainant’s trade mark and that the Complainant has therefore established the first element of paragraph 4(a) of the Policy.
D. Rights or Legitimate Interests
As explained in section 2.1 of WIPO Overview 3.0, the consensus view is that, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If not, the complainant is deemed to have satisfied the second element.
Here, the Complainant has not licensed or otherwise authorised the Respondent to use its trade mark.
Paragraph 4(c) of the Policy gives examples of circumstances which, if proved, suffice to demonstrate that a respondent possesses rights or legitimate interests.
The Respondent asserts that it has the right to review “any sites on the Internet”. However, as explained in sections 2.6.1 and 2.7.1 of WIPO Overview 3.0, any such claimed fair use must be genuine and noncommercial; in a number of UDRP decisions where respondents have relied on free speech, panels have found that this was primarily a pretext for cybersquatting, commercial activity, or tarnishment.
In this case, as explained under the third element below, the Panel has concluded that the Respondent’s website was not to provide a genuine “review” website but was instead intended to attract, deceive and profit from Internet users seeking the Complainant’s products and services.
Nor is there any evidence that paragraphs 4(c)(i) or (ii) of the Policy apply in the circumstances of this case.
For the above reasons, the Panel concludes that the Complainant has established the second element of paragraph 4(a) of the Policy.
E. Registered and Used in Bad Faith
The Respondent has not addressed, let alone disputed, the Complainant’s assertion that purported links to the Complainant’s website on the Respondent’s site in fact take users to a different website which competes with the Complainant and which many Internet users on third party review websites describe as a “scam”.
Accordingly, the Panel rejects the Respondent’s assertion that it genuinely registered and used the disputed domain name for the purposes of its “right to review any sites on the Internet”. In the Panel’s view, the Respondent’s real purpose was to deceive Internet users seeking the Complainant and to divert them to a competing, and possibly fraudulent, website.
Far from helping the Respondent, its changes to the site after the Complaint was filed, including replacement of “Sniffies” with “Sniff Map” and adding the word “reviews”, appear defensive and the Panel considers that they are additional indicators of bad faith.
As regards the disclaimer added by the Respondent, section 3.7 of the WIPO Overview 3.0 explains that, where the overall circumstances of a case point to a respondent’s bad faith, the mere existence of a disclaimer cannot cure such bad faith. That is all the more so where the disclaimer is only inserted belatedly in response to the Complaint.
The Panel concludes from the foregoing that the Respondent has registered and used the disputed domain name in bad faith in accordance with paragraph 4(b)(iv) of the Policy. The Respondent has intentionally attempted to attract Internet users to its website for commercial gain by creating a likelihood of confusion with the Complainant’s trade mark.
For the above reasons, the Panel considers that the Complainant has established the third element of paragraph 4(a) of the Policy.
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 names <sniffmap.app> be transferred to the Complainant.
Date: January 27, 2022