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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Instagram, LLC v. Super Privacy Service LTD c/o Dynadot

Case No. D2019-3098

1. The Parties

Complainant is Instagram, LLC, United States of America (“United States”), represented by Hogan Lovells (Paris) LLP, France.

Respondent is Super Privacy Service LTD c/o Dynadot, United States.

2. The Domain Name and Registrar

The disputed domain name <instag4am.com> (the “Domain Name”) is registered with Dynadot, LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 13, 2019. On December 16, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On December 17, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on January 6, 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 January 8, 2020.

The Center verified that the Complaint together with the amended 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 Respondent of the Complaint, and the proceedings commenced on January 9, 2020. In accordance with the Rules, paragraph 5, the due date for Response was January 29, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on January 30, 2020.

The Center appointed Robert A. Badgley as the sole panelist in this matter on February 10, 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.

4. Factual Background

Complainant describes itself as a “world-renowned online photo and video sharing social networking application”. Launched in 2010, Complainant had 400 million active monthly users as of September 2015. Today, this monthly figure exceeds one billion. Complainant’s website is located at “www.instagram.com”. There is ample evidence presented in the record to back up Complainant’s assertion that Instagram is a very popular and well-known social media platform.

Complainant holds numerous registrations for the INSTAGRAM trademark, including United States Patent and Trademark Office Reg. No. 4,146,057 (registered May 22, 2012, first use in commerce October 6, 2010).

The Domain Name was registered on November 13, 2016. The Domain Name resolves to a “Coming Soon” landing page containing various hyperlinks, including “Mesothelioma Law Firm”, “Asbestos Lawyers”, “Adventure Holidays”, and so forth.

5. Parties’ Contentions

A. Complainant

Complainant contends that it has satisfied all three elements required under the Policy for a transfer of the Domain Name.

B. Respondent

Respondent did not reply to Complainant’s contentions.

6. Discussion and Findings

Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name:

(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and

(iii) the Domain Name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The Panel concludes that Complainant has rights in the mark INSTAGRAM through registration demonstrated in the record. The Panel also finds that the Domain Name is confusingly similar to that mark. The only difference between the mark and the Domain Name is that the latter replaces the letter “r” with the number “4”. The Panel concludes that the INSTAGRAM mark is clearly recognizable within the Domain Name, notwithstanding this change of one character. The Panel also notes that the letter “r” is adjacent to the number “4” on the QWERTY keyboard. This appears to be a clear case of typo-trolling, otherwise known as typo-squatting.

Complainant has established Policy paragraph 4(a)(i).

B. Rights or Legitimate Interests

Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:

(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or

(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or

(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

The Panel concludes that Respondent lacks rights or legitimate interests in respect of the Domain Name. Respondent has not come forward to explain why it chose to register the Domain Name at a time when the INSTAGRAM mark had already acquired considerable fame. As noted above, it seems rather clear that Respondent registered the Domain Name to capture Internet traffic caused by users mistakenly typing the “4” key instead of the “r” key.

Complainant has established Policy paragraph 4(a)(ii).

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use of the Domain Name in “bad faith”:

(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or

(ii) that Respondent has registered the Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or

(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or

(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.

The Panel incorporates here its discussion above in the “rights or legitimate interests” section to support its conclusion that Respondent registered the Domain Name with Complainant’s well-known mark in mind and hence in bad faith. The Panel further concludes that Respondent’s website, even in its rudimentary form, appears designed to lure Internet traffic for commercial gain by means of taking advantage of a typo. This conduct constitutes bad faith use within the meaning of the above-quoted Policy paragraph 4(b)(iv).

Complainant has established Policy paragraph 4(a)(iii).

7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <instag4am.com> be transferred to Complainant.

Robert A. Badgley
Sole Panelist
Date: February 20, 2020

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