Complainant is Snowflake, Inc., United States of America (“United States”), represented by Intsights Cyber Intelligence Ltd., Israel.
Respondent is Ezra Silverman, United States.
The disputed domain name <snowflakelabs.io> is registered with Key-Systems GmbH (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 5 2020. On August 13, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 8, 2020, 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 Complainant on September 11, 2020 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on September 29, 2020. In response to a notification by the Center that the Complaint was administratively deficient, Complainant filed an amendment to the Complaint on October 4, 2020.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the .IO Domain Name Dispute Resolution Policy (the “Policy”), the Rules for .IO Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for .IO Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on October 8, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 28, 2020. The Center received an email communication from Respondent on September 29, 2020. Respondent did not submit any further response. Accordingly, the Center notified the Commencement of Panel Appointment Process on November 4, 2020.
The Center appointed Georges Nahitchevansky as the sole panelist in this matter on November 20, 2020. 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.
Complainant, Snowflake, Inc. is a cloud-based data warehousing company based in California. Complainant uses the name “Snowflake” for its business activities and operates a website at <snowflake.com> which provides information regarding Complainant’s services. Per the Complaint Complainant owns a trademark registration for the mark SNOWFLAKE in Australia which issued to registration on January 7, 2020, but was filed in February 2018 (Registration No. 1907156). Also per the Complaint Complainant also owns a registration in the United States for a stylized snowflake design, registered on August 20, 2019 (Registration No. 5,839,517).
Respondent is an individual based in the United States. Respondent registered the disputed domain name on January 17, 2020.
Respondent has used the disputed domain name for a website that concerns services that Respondent appears to offer in relation to software automation and machine learning.
Currently, the disputed domain name resolves to a website that concerns Respondent’s dispute with Complainant and which disclaims any connection to Complainant.
Complainant maintains that it owns numerous trademark registrations that relate to the SNOWFLAKE mark and has websites that relate to the “Snowflake” name.
Complainant argues that the disputed domain name is identical of confusingly to Complainant’s SNOWFLAKE mark, as Respondent is using the SNOWFLAKE mark in the disputed domain name. Complainant further argues that the addition of the word “labs” to the SNOWFLAKE mark is not a distinguishing feature.1
Complainant contends that Respondent has no rights or legitimate interests in the disputed domain name as Respondent operates a website at the disputed domain name that is meant to pretend or seem like Complainant’s website and which is being used “to attract potential customers and trick them into providing false information.”
Complainant asserts that Respondent has registered the disputed domain name in bad faith as Respondent registered the disputed domain name “by using names and methods to deceive end users.” Complainant further asserts that “Respondents use of a registration of the domain name without providing real details shows that they had bad faith.”
Respondent did not file a formal Response, but on September 29, 2020, Respondent sent an email to the Center. In that email, Respondent advised as follows:
“If you guys want to buy the domain off of me that’s fine. But you did not register this domain first. I did. Just because you are a large corporation does not give you the right to just take it. Perhaps you should have done your due diligence. I’ve taken down what you claimed was your logo, though that was from a clip art site. If you don’t want to buy it, I’ll be happy to have my attorneys file a harassment suit against you.”
Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) 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 standard of proof under the Policy is often expressed as the “balance of the probabilities” or “preponderance of the evidence” standard. Under this standard, an asserting party needs to establish that it is more likely than not that the claimed fact is true. The touchstone, however, is that an asserting party cannot meet its burden by simply making conclusory statements unsupported by evidence. To allow a party to merely make factual claims without any supporting evidence would essentially eviscerate the requirements of the Policy as both complainants or respondents could simply claim anything without any proof. For this reason, Panels have generally dismissed factual allegations that are not supported by any bona fide documentary or other credible evidence.
Here, although Respondent has failed to submit a substantive (and thereby certified) Response to the complaint, he has communicated with the Center; in either event, this does not automatically result in a decision in favor of Complainant, nor is it an admission that Complainant’s claims are true. The burden remains with Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. A Panel, however, may draw appropriate inferences from a respondent’s default in light of the particular facts and circumstances of the case, such as regarding factual allegations that are not inherently implausible as being true. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”); see also The Knot, Inc. v. In Knot We Trust LTD, WIPO Case No. D2006-0340.
Ownership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) at section 1.2.1. At the outset the Panel notes that Complainant’s trademark registration for a stylized snowflake design (only, with no words) in the United States is irrelevant under this element as it is merely a logo and does not in of itself provide Complainant with rights in the SNOWFLAKE name and mark.
Complainant has however additionally provided evidence that it owns a trademark registration for SNOWFLAKE in Australia.
With Complainant’s rights in the SNOWFLAKE mark established, the remaining question under the first element of the Policy is whether the disputed domain name (typically disregarding the country code Top-Level Domain (“ccTLD”) such as “.io”) is identical or confusingly similar with Complainant’s mark. See B & H Foto & Electronics Corp. v. Domains by Proxy, Inc. / Joseph Gross, WIPO Case No. D2010-0842. The threshold for satisfying this first element is low and generally panels have found that fully incorporating the identical mark in a disputed domain name is sufficient to meet the threshold.
In the instant proceeding, the disputed domain name is confusingly similar to Complainant’s SNOWFLAKE mark as the disputed domain name consists of the SNOWFLAKE mark in its entirety, at the head of the disputed domain name. The addition of the descriptive word “labs,” does not prevent a finding of confusing similarity between the disputed domain name and Complainant’s mark for purposes of the first element in particular as the dominant component of the disputed domain name is SNOWFLAKE. WIPO Overview 3.0 at section 1.8. The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in Complainant’s SNOWFLAKE mark and in showing that the disputed domain name is identical or confusingly similar to that trademark.
Given that Complainant has submitted very little by way of arguments or evidence with its Complaint, and given that the analysis of Complainant’s contentions under the second and third elements are based on the same limited arguments and evidence before the Panel, the discussion of these two elements has been combined. See WIPO Overview 3.0 section 2.15.
Complainant argues that Respondent has acted in bad faith and has no rights or legitimate interests in the disputed domain name because Complainant (i) owns trademark registrations that relate to the “Snowflake” name, (ii) owns and uses the domain name <snowflake.com> with a website for Complainant’s business activities and (iii) “has various websites” for its activities.
The trademark registrations submitted by Complainant, however, create questions as to the scope of Complainant’s rights in the SNOWFLAKE mark. As already noted, Complainant’s claimed trademark registration in the United States is simply for a stylized snowflake with no textual element. Complainant’s word trademark registration in Australia issued to registration on January 7, 2020, some nine days before Respondent registered the disputed domain name.
While Complainant refers to its ownership of the disputed domain name <snowflake.com> to support its claims, Complainant provided no evidence in regards to that domain name (or as to any other unidentified domain names that Complainant might be using with its claimed “various websites”). For instance, Complainant provided no evidence showing (i) that Complainant actually owns the <snowflake.com> domain name which is registered using a privacy service, (ii) when Complainant obtained the <snowflake.com> domain name or even had an operational website at the <snowflake.com> domain name and the resulting traffic or reputation it may have acquired, or (iii) what the website at the <snowflake.com> looks like or has looked like in the past. The Panel visited the website at <snowflake.com> and notes that Complainant does indeed currently maintain a website at that domain name that concerns Complainant and its cloud-based data warehousing services. When that website became operational is unknown, as Complainant provided no evidence in that regard.
Notably, while Complainant claims that it has been in business since 2014, Complainant provided no evidence of its historical use of its claimed SNOWFLAKE name and mark in the United States, Australia, or anywhere else in the world. Similarly, Complainant provided no evidence regarding the reputation its claimed SNOWFLAKE mark might enjoy in the United States (given that Complainant merely relies on a registration for a snowflake design) or elsewhere. In a footnote in a paragraph setting out Complainant’s contact details, Complainant provided a link with no explanation to a Wikipedia page that purports to concern Complainant. The page when visited by the Panel explains that Complainant is a cloud-based data warehousing company that was formed in 2012 and that the company then operated in stealth mode for two years and apparently publicly launched in 2014. What is missing in Complainant’s submission is evidence that shows the extent of Complainant’s rights in, and use of, the SNOWFLAKE mark, including in the United States where Respondent is located. To be sure, Complainant does not maintain that it has developed common law or unregistered rights in the SNOWFLAKE prior to obtaining its Australian registration for SNOWFLAKE. Nor has Complainant provided any evidence that would typically be submitted by a party claiming common law or unregistered rights in a mark establishing that its mark has become a distinctive identifier which consumers associate with the complainant’s goods and/or services. See WIPO Overview 3.0 at section 1.3.
While Complainant may have evidence to support its contentions, very little evidence was in fact submitted in this case – including during the course of two amendments to its complaint. Complainant’s entire evidentiary submission consists of the two trademark registrations already noted and an undated screen shot inserted in the Complaint that shows a part of Respondent’s website at the disputed domain name; as best the Panel can tell the Complainant seeks to rely on an inference purportedly regarding the use of a logo similar to the Complainant’s in a browser tab.
The Panel is mindful that in certain cases it may be appropriate to rely on such an inference, and that an explanation may be called for by a respondent. See e.g., Pixers Ltd. v. Whois Privacy Corp., WIPO Case No. D2015-1171 articulating that “[s]uch cases are generally typified by a clear absence of rights or legitimate interests. By way of examples, other relevant factors could include the nature of the domain name itself, the content of any website to which the domain name pointed – including any changes in such website content and the timing thereof, the registrant's prior conduct generally and in UDRP cases in particular, the reputation of the complainant's mark, the use of (fraudulent) contact details or a privacy shield to hide the registrant's identity, the failure to submit a response, the plausibility of any response, or other indicia that generally cast doubt on the registrant's bona fides.”
Aside from the fact that Respondent does not appear to be using fake contact details and seems to be an actual legitimate operating business with no prior history of cybersquatting (and while not submitting a formal response, has communicated with the Center), , the screen shot submitted by Complainant in this case consists merely of a capture of a portion of a page from Respondent’s website and shows that Respondent had a website at the disputed domain at some point in time that had entries for Machine Learning and Software Automation (whether this treads too close to Complainant’s marks and cloud based data warehousing services is a question better suited for a court). Beyond that there is no other evidence, apart from a link to a Wikipedia page and a reference to Complainant’s ownership of <snowflake.com>. What is altogether missing is information concerning Complainant’s claimed rights in the SNOWFLAKE mark, including in the United States or if in Australia or globally, the timing and extent and scope of those rights, the reputation Complainant enjoys in the SNOWFLAKE name and mark, and/or the past use of the SNOWFLAKE mark before Respondent registered the disputed domain name.
In addition, there is no evidence beyond an inference the Panel is apparently supposed to draw on its own accord that Respondent registered the disputed domain name in bad faith and in order to take advantage of Complainant’s claimed rights in SNOWFLAKE. For example, there is no evidence that Respondent has a pattern of registering domain names based on the marks or names of third parties, that Respondent has a sham business or that Respondent even competes with Complainant. Indeed the screen shot inserted by Complainant in the Complaint does not show that Respondent is actually competing with Complainant in its specific cloud area (rather than in “IT services” generally) or that Respondent is trying to pass itself off as Complainant or to be related to Complainant.2
Complainant’s entire claim of bad faith and lack of a legitimate interest rests on the notion that Respondent is seeking to deceive consumers and “to trick them into providing false information.” Palpably lacking is any evidence showing that Respondent would more likely than not be engaged in such a scheme to deceive or to trick consumers. The one screen shot from a portion of Respondent’s website that was inserted in the Complaint certainly does not show such to be the case, and contrary to what Complainant claims the screen shot does not even look like Complainant’s website (as reviewed online by the Panel).
Complainant also argues that Respondent registered the disputed domain name in bad faith by failing to provide any “real details” and by using a privacy service. However, a review of the WhoIs record for the disputed domain name shows that the Registrar masked the registrant information, presumably in response to potentially applicable regulations such as the GDPR as many other registrars have likewise done. Moreover, after the Complaint was filed the Registrar provided what by all appearances is accurate contact information concerning Respondent, as Complainant has not submitted any evidence showing otherwise. Again, what is lacking is evidence that Respondent used false contact information or actively sought to conceal his identity by using bogus underlying information. In that regard, it is worth noting that Complainant has itself used a privacy service to mask its information for the <snowflake.com> domain name.3
Simply put, Complainant has failed to prove through evidence that Respondent has acted in bad faith by registering the disputed domain name. While it arguably may have been improvident for Respondent to register and use a domain name that consists of the “Snowflake” name for a software business in the United States, given Complainant’s claimed rights in SNOWFLAKE, the evidence submitted in this case simply does not show that Respondent sought to target Complainant in January 2020 in bad faith.
More to the point, this is a case that in the Panel’s view is better suited for the courts for a determination under relevant national trademark law. Perhaps a more fully developed record in another forum might show bad faith targeting by Respondent, but what is before the Panel in this proceeding is seriously deficient (comprising a total of two substantive sentences for the second and third elements).
For the foregoing reasons, the Complaint is denied.
Georges Nahitchevansky
Sole Panelist
Date: December 4, 2020
1 The Panel notes that the Complaint, and both subsequent Amended Complaints, contain some statements that appear to be in error. For instance, Complainant asserts that Respondent “uses the domain name Snowflakecomputing, which is similar to Snowflake, the Complainant’s name, and to the Complainant’s website and trademarks.” The one screen shot provided by Complainant, however, shows no use of the term Snowflakecomputing by Respondent. The Panel thus disregards this statement and assumes this was likely an error by Complainant. Similarly, Complainant refers to owning a trademark registration in the United States with the registration number 3,839,517. That registration, however, correlates to the mark THE ONE-STEP SKINCARE SOLUTION. The one United States registration provided by Complainant is actually for a snowflake design without any words. Lastly, Complainant initially named the Respondent as “Leehouchang” and listed an incorrect party as the registrar of the disputed domain name. These entries proved to be mistakes and were ultimately fixed by Complainant in its Amended Complaints when prompted by the Center.
2 A quick search on Google shows a Dun & Bradstreet report that the Respondent is located in Columbus, OH, United States and is part of the Information Technology Services Industry having two employees across and generating some USD 50,000 in sales.
3 The Panel notes that Complainant did not assert a claim of bad faith use of the disputed domain and simply relied on a claim of bad faith registration for the third element under the .IO Dispute Resolution Policy. This is telling as it suggests that Complainant might not itself believe that it could establish bad faith use of the disputed domain name under the available evidence and facts. In addition, while it appears from Respondent’s September 29, 2020 email to the Center that the Parties may have had prior communications, Complainant did not include or make reference to any such communications in its Complaint, which further puts into question whether Complainant believes that Respondent was acting in bad faith.