I also find that Respondents establishment of a social dating community in 2013 at the time they registered the domain names and , which they have continuously maintained since that time, would under Paragraph 4(c)(ii) of the Policy prove Respondents rights or legitimate interests in a disputed domain name
Complainant has continuously used the Snap es were registered, giving Complainant trademark rights that predate the registration date of the Infringing Domain Names. See Annexes A and D-T.
A review of the Annexes did not provide any direct support for a claim of common law trademark rights from any time certain using the normal metrics involved in such a finding. The Complainant at best implicitly asserted that the beginning time it was relying on was the first use date for the mark SNAPCHAT.
For example; The Panel notes that while a trademark registration is not required under Policy 4(a)(i), a complainant must show that the mark has acquired secondary meaning to demonstrate common law rights. See Microsoft Corporation v. Story Remix / Inofficial, FA 1734934 (Forum ) (finding that The Policy does not require a complainant to own a registered trademark prior to a respondents registration if it can demonstrate established common law rights in the mark.); see also Marquette Golf Club v. Al Perkins, 1738263 (Forum ) (finding that Complainant had established its common law rights in the MARQUETTE GOLF CLUB mark with evidence of secondary meaning, including longstanding use; evidence of holding an identical domain name; media recognition; and promotional material/advertising.). Secondary meaning requires establishing that the public primarily associates the mark in question with certain goods or services originating from the purported mark holder. See AOL LLC v. Di) (Secondary meaning is acquired when in the minds of the public, the primary significance of a product feature . . . is to identify the source of the product rather than the product itself.). Secondary meaning generally requires the claimant indicate length of use and amount of sales under the mark, the nature and extent of advertising, and consumer association EastMeetEast username through surveys and media recognition. roylee, FA 1618801 ( Forum ) (holding, Relevant evidence of secondary meaning includes continuous and ongoing use of a e identical to the mark, or using the e is created. Finding Complainant has provided evidence of secondary meaning . . . displaying Complainants business registration with the state of Tennessee, showing use of the 745-CASH . . . showing the creation date as of Complainants own website plainant also urges that its business phone number is 745-CASH.).
See also Golden Title Loans, LLC dba 745Cash v
There is no evidence provided of the type noted above to support Complainants assertion that Complainant has continuously used the Snap es were registered, giving Complainant trademark rights that predate the registration date of the Infringing Domain Names. While Complainants SNAPCHAT mark was deemed distinctive enough to secure registration, I cannot find that it simultaneously bestowed upon Complainant a right to control all rights to the generic word SNAP. I find that Respondents and domain name registrations predate Complainants rights to the SNAP mark by several years.
(ii) Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if you have acquired no trademark or service mark rights;
Respondent was commonly known by the two domain names noted prior to Complainant establishing any rights in the SNAP mark.
Additionally, in accordance with the WIPO 3.0 Overview, while the UDRP makes no specific reference to the date on which the holder of the trademark or service mark acquired its rights, such rights must be in existence at the time the complaint is filed. The fact that a domain name may have been registered before a complainant has acquired trademark rights does not by itself preclude a complainants standing to file a UDRP case, nor a panels finding of identity or confusing similarity under the first element. However, where a domain name has been registered before a complainant has acquired trademark rights, only in exceptional cases would a complainant be able to prove a respondents bad faith. This not such an exceptional case. I find that Respondent did not register or use the disputed domain names and in bad faith since Complainant had no rights to SNAP at the time the domain names were registered.