The Complainant is Instagram, LLC, United States of America (“United States”), represented by Hogan Lovells (Paris) LLP, France.
The Respondent is Orhan Uzdu, Turkey.
The disputed domain name <freeinstagramfollowersfast.com> is registered with GoDaddy.com, LLC. The disputed domain names <instagramrealfollowers.com> and <vipinstagramtakipci.com> are registered with NameSilo, LLC. The disputed domain names <igliker.xyz> and <instagramfreefollowers.org> are registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 15, 2019. On November 15, 2019, the Center transmitted by email to the Registrars a request for registrar verification in connection with the disputed domain names. On November 15, 2019 and November 16, 2019, the Registrars transmitted by email to the Center their verification responses 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 November 27, 2019. In accordance with the Rules, paragraph 5, the due date for Response was December 17, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 18, 2019. In response, the Center received an email communication in Turkish on December 20, 2019, from the Respondent inquiring about the proceedings. The Center replied to the latter inquiry on the same day.
The Center appointed Gökhan Gökçe as the sole panelist in this matter on December 24, 2019. 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 is an online photo and video-sharing social networking application. Launched in 2010 and acquired by Facebook, Inc. in 2012, the Complainant has 1 billion monthly active users and 500 million daily active users, with more than 95 million photos and videos shared per day. The Complainant’s website is ranked as the 29th most visited website in the world and 23rd in Turkey (where the Respondent is based), according to web information company Alexa.
The Complainant owns numerous trademark registrations for INSTAGRAM and IG in jurisdictions throughout the world, including in Turkey where the Respondent is based. Such trademark registrations include but are not limited to the following:
- Turkish Trademark No. 2012/85440, INSTAGRAM, registered on April 28, 2015;
- Turkish Trademark No. 2013/74099, INSTAGRAM, registered on May 20, 2015;
- Turkish Trademark No. 2018/73338, IGTV, registered on June 12, 2019;
- European Union Trademark No. 012111746, INSTAGRAM, registered on March 6, 2014;
- United States Trademark No. 4146057, INSTAGRAM, registered on May 22, 2012;
- European Union Trademark No. 017946393, IG, registered on January 31, 2019.
Pursuant to the Annex 6 of the Complaint, the Complainant is the registrant of numerous domain names consisting of INSTAGRAM under a wide range of generic Top-Level Domain (“gTLD”) as well as under numerous country code Top-Level Domain (“ccTLD”), such as, <instagram.co.at> (Austria), <instagram.org.cn> (China), <instagram.dk> (Denmark), and <instagram.com.tr> (Turkey).
The creation dates of the disputed domain names are as follows:
- <freeinstagramfollowersfast.com> which resolves to a website in English that purports to offer Instagram “likes” and “followers” for sale was created on April 23, 2016.
- <igliker.xyz> which does not resolve to an active website was created on April 17, 2019.
- <instagramfreefollowers.org> which does not currently resolve to an active website was created on March 3, 2017.
- <instagramrealfollowers.com> which resolves to a website in English that purports to offer Instagram “likes” and “followers” for sale or for free was created on December 22, 2018.
- <vipinstagramtakipci.com> resolves to a website in Turkish entitled “instagram takipçi hilesi” (can be translated as “instagram follower trick”) was created on July 28, 2017.
The Respondent is an individual from Turkey.
The Complainant submitted evidences which show that the disputed domain names are linked to English and Turkish websites. The Panel visited the disputed domain names on December 25, 2019, and determined that the disputed domain names; <freeinstagramfollowersfast.com> and <instagramrealfollowers.com> resolve to a website in English that purports to offer Instagram “likes” and “followers” for sale; <igliker.xyz> and <instagramfreefollowers.org> were inactive; <vipinstagramtakipci.com> resolves to a website in Turkish that purports to offer Instagram “likes” for sale.
The Complainant requests the transfer of the disputed domain names.
The Complainant is of the opinion that the disputed domain names are confusingly similar to its INSTAGRAM trademark. The Complainant asserts that the addition of the descriptive terms “free”, “followers”, “fast”, “real”, “liker”, and “takipci” do not prevent a finding of confusing similarity with the Complainant’s INSTAGRAM trademark.
The Complainant also asserts that the term “ig” is used as a common abbreviation for “Instagram” and the Complainant submitted evidences in Annex 17 of the Complaint for copies of articles and screen captures of online dictionaries evidencing that the term “ig” commonly refers to Instagram, therefore the Complainant argues that the disputed domain name <igliker.xyz> is also confusingly similar to its trademark.
The Complainant also states gTLDs; “.com”, “.org”, and “.xyz”, should be ignored when assessing the confusing similarity between a trademark and a domain name.
The Complainant is of the opinion that the Respondent has no rights or legitimate interests in the disputed domain names. The Respondent is not known under these names, not licensee of the Complainant, nor has been otherwise authorized or allowed by the Complainant to make any use of its INSTAGRAM trademark in any way.
The Complainant asserts that the disputed domain names were registered and are being used in bad faith.
The Respondent did not reply to the Complainant’s contentions.
According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) the disputed domain names are identical or confusingly similar to a trademark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain names; and
(iii) the disputed domain names have been registered and are being used in bad faith.
Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complainant’s contentions. Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.
However, concerning the uncontested information provided by the Complainant, the Panel may, where relevant, accept the provided reasonable factual allegations in the Complaint as true. See, section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
It is further noted that the Panel has taken note of the WIPO Overview 3.0 and will decide consistent with the WIPO Overview 3.0.
The Panel considers that the Complainant has satisfied the threshold requirement of having relevant trademark rights. As evidenced in the Complaint, the Complainant is the owner of various INSTAGRAM trademarks, which are registered in many jurisdictions since at least 2012, including in Turkey. Due to the wide recognition of the Complainant’s trademark also in Turkey, the Panel believes that INSTAGRAM is a well-known trademark.
The Panel finds that the disputed domain names are confusingly similar to the Complainant’s INSTAGRAM trademark. Most of the disputed domain names comprise the INSTAGRAM trademark in its entirety. In relation to the disputed domain name <igliker.xyz>, in light of the evidences submitted in Annex 17 of the Complaint, the Panel considers that the “ig” term is generally used for the abbreviation of INSTAGRAM and has also taken note of the European Union IG trademark.
The Panel further notes that the descriptive terms “free”, “followers”, “fast”, “real”, “liker”, and “takipci” do not prevent a finding of confusing similarity. See section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). The addition of other terms does not avoid the confusing similarity (Instagram, LLC v. Omer Ulku, WIPO Case No. D2018-1700) (Nintendo of America Inc. v. Fernando Sascha Gutierrez, WIPO Case No. D2009-0434).
The gTLD “.xyz”, “.com”, and “.org” generally are not taken into consideration when examining the confusing similarity between the Complainant’s trademark and the disputed domain names. V&S Vin & Sprit AB v. Ooar Supplies, WIPO Case No. D2004-0962; Google Inc. v. Nijat Hassanov, WIPO Case No. D2011-1054.
In view of the above, the Panel is satisfied that the Complainant has met the requirements under paragraph 4(a)(i) of the Policy.
The Panel further finds that in the absence of a Response, the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain names.
While the burden of proof remains with the Complainant, the Panel recognizes that this would often result in the impossible task of proving a negative, in particular as the evidence needed to show the Respondent’s lack of rights or legitimate interests is primarily within the knowledge of the Respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden of production shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain names in order to meet the requirements of paragraph 4(a)(ii) of the Policy. (Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270.)
In the light of the evidence submitted by the Complainant, and the Panel’s researches, e.g., trademark registration certificates, domain name registrations, etc., it is clear to the Panel that the Complainant has earlier rights in the INSTAGRAM and IG trademarks. Therefore, the Panel finds on the current record that the Complainant has proved rights in the INSTAGRAM and IG trademarks and also established a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain names for the purposes of the Policy. Further, the Complainant has not granted the Respondent any right or license to use its trademarks. Therefore, in the absence of any license or permission from the Complainant to use any of its trademarks or to apply for or use any domain name incorporating those trademarks, it is clear that no actual or contemplated bona fide or legitimate use of the disputed domain names could be claimed by the Respondent. Guerlain S.A. v. Peikang, WIPO Case No. D2000-0055.
The Panel visited the disputed domain names and found that the disputed domain names namely, <freeinstagramfollowersfast.com> and <instagramrealfollowers.com> resolve to a website in English that purports to offer Instagram “likes” and “followers” for sale; <igliker.xyz> and <instagramfreefollowers.org> were inactive; <vipinstagramtakipci.com> resolves to a website in Turkish that purports to offer Instagram “likes” for sale. Therefore, the Panel finds that for <igliker.xyz> and <instagramfreefollowers.org> which are inactive, these disputed domain names resolve to inactive web pages and the Panel is entitled to find following the Complainant’s submission that the Respondent’s failure to make current active use of this disputed domain names constitute a failure to make a bona fide offering of goods or services and further establishes that the Respondents are not making a legitimate noncommercial or fair use of the disputed domain names.
The Respondent must have been aware of the Complainant’s rights in the INSTAGRAM and IG marks. The disputed domain names <freeinstagramfollowersfast.com>, <instagramrealfollowers.com> and <vipinstagramtakipci.com> resolved to a website that prominently displayed the Complainant’s trademark and logo. Such website displayed text which purports to offer Instagram “likes” and “followers” for sale and also to obtain them for free, provided that these users enter their Instagram account credentials in a pop-up log in window. Therefore, the Panel considers that the disputed domain names used in connection with a phishing scam that seeks to illegitimately collect the personal data or confidential account information of Instagram users, with intent for commercial gain. Additionally, the Respondent is seeking to extract a profit from the users’ confusion as to the source of the offering. In the view of the Panel, either by imitating the look and feel of the Complainant’s official website, or by creating the impression of association with the Complainant, the Respondent’s use of the disputed domain names is neither a bona fide use under Policy paragraph 4(c)(i) nor a fair or legitimate noncommercial use under Policy, paragraph 4(c)(iii).
In addition, the Panel notes that the nature of the disputed domain names carry risk of implied affiliation or association, as stated in section 2.5.1 of the WIPO Overview 3.0.
Consequently, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.
As per Complaint, the Complainant’s INSTAGRAM trademark is well-known in connection with online photo-sharing social network (Instagram, LLC v. Ellie Walker, WIPO Case No. D2018-0669; Instagram, LLC v. Sedat Das, Arda, Domain Admin, whoisprotection biz, Domain Admin Domain Admin, whoisprotection biz, WIPO Case No. D2016-2382; Instagram, LLC v. Ozgur Kalyoncu, Seo Master and Huseyin Erdem, WIPO Case No. D2016-1710; Instagram, LLC v. Omer Ulku, WIPO Case No. D2018-1700). As the Complainant’s trademarks have been widely used and registered at the time of the disputed domain name registrations, the Panel finds it more likely than not that Respondent had the Complainant’s marks in mind when registering the disputed domain names.
The Panel accepts that given a number of the disputed domain names are pointing or previously pointed to websites purportedly selling or providing for free Instagram “followers/likes” is evidence of the Respondent’s awareness of the Complainant at the time of registration.
Furthermore, the disputed domain names <freeinstagramfollowersfast.com> and <vipinstagramtakipci.com> had the same look as the Complainant’s official log in page. Previous UDRP panels have held that replication of the look and feel of a complainant’s official website suggests intention of misappropriation of the complainant’s well-known trademark for commercial advantage (Instagram, LLC v. Dogukan Elmas, WIPO Case No. D2019-1813).
Regarding the use in bad faith of the disputed domain names <igliker.xyz> and <instagramfreefollowers.org> pointing to an inactive websites, the Panel considers that bad faith may exist even in cases of so-called “passive holding”, as found in the landmark UDRP decision Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003. In the circumstances of this case, the Panel finds that such passive holding amounts to bad faith use.
Accordingly, the Panel concludes that the Complainant has satisfied its burden of showing bad faith registration and use of the disputed domain names under paragraph 4(a)(iii) 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, <freeinstagramfollowersfast.com>, <igliker.xyz>, <instagramfreefollowers.org>, <instagramrealfollowers.com> and <vipinstagramtakipci.com> be transferred to the Complainant.
Gökhan Gökçe
Sole Panelist
Date: January 3, 2020