As laches is a defense mechanism for Respondent which finally affects the arguments regarding the elements of rights or legitimate interests in the disputed domain name and bad faith registration and use, the delay should be taken into account in those elements. Hence, we would have to review each element in order to determine whether or not the delay affected the requirements of the Policy as delay is not itself a basis to deny a claim. Consequently, the only reference to Laches is that it does not apply in this case as is not part of the Policy.
Identical and/or Confusingly Similar
Firstly, it is important to point out that Paragraph 4(a) of the Policy requires the existence of a trademark or a service mark. The intellectual property rights are acquired by registration before the competent office in many jurisdictions around the world.
The worldwide-accepted definition of a trademark involves the concept of distinctive force as the most relevant element. Said force gives the mark the capability to identify the products or services of its owner and differentiate them from the product and services of other participants in the market.
When a mark is registered, it is surrounded by a presumption of sufficient distinctive force, and the owner is granted with an exclusive right over the mark, which entitles him to prevent any third party from using the registered sign or any other sign confusingly similar to it.
However, the UDRP does not discriminate between registered and unregistered trademarks [i] and thus, it is well established that a Complainant does not require owning a registered trademark to invoke the Policy. It is sufficient in certain common law jurisdictions, such as the United States of America, that Complainant has rights in an unregistered trademark as to deserve legal protection, based solely on its use in commerce.
This information is conclusive evidence of Complainants ownership of the cited marks and the exclusive right to use them in connection with the stated goods. The registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive [ii] .
Hence, the trademark SNAPCHAT has been registered since before Respondent acquired the disputed domain names. For clarity, the trade, and registered on es were registered or acquired by Respondent, as follows:
c. In , a study concluded that 77% of U.S. college students used the app distinguished with the trademark SNAPCHAT at least once per day.
e. By the end of 2015, the app distinguished with the trademark SNAPCHAT had over 100 million daily active users.
In this case, Complainant proved its rights in the trademark SNAPCHAT and SNAP, by means of the registrations in the United States of America before the USPTO, Registration No
g. Those users on average visited the app distinguished with the trademark SNAPCHAT more than 18 times a day, spent an average of 25-30 minutes on the app, and sent over 2.5 billion Snaps.
h. During this period, the app distinguished with the tradeong the Apple App Stores top five most downloaded photo applications and top 15 most downloaded mobile applications overall.
i. In 2016, the app distinguished with the trademark SNAPCHAT was recognized as the most-downloaded app in the Apple App Store.
Therefore, the Panel concludes that Complainant has demonstrated rights in the trademarks SNAPCHAT and SNAP for purposes of Paragraph 4(a)(i) of the Policy.