Amazon Technologies, Inc. v. sk muktar
Claim Number: FA2108001960149
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is sk muktar (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amazonft.com>, registered with Porkbun LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 18, 2021; the Forum received payment on August 18, 2021.
On August 18, 2021, Porkbun LLC confirmed by e-mail to the Forum that the <amazonft.com> domain name is registered with Porkbun LLC and that Respondent is the current registrant of the name. Porkbun LLC has verified that Respondent is bound by the Porkbun LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On August 23, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 13, 2021 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@amazonft.com. Also on August 23, 2021, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On September 17, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant contends as follows:
Complainant, Amazon Technologies Inc., is a leading retailer, offering a broad range of other products and services, including music and video services.
Complainant has rights in the AMAZON mark based upon registration with numerous trademark agencies, including the United States Patent and Trademark Office (“USPTO”).
Respondent’s <amazonft.com> domain name is confusingly similar to Complainant’s AMAZON mark since it incorporates the entirety of the mark, simply adding the letters “ft” (Free Tube) and the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <amazonft.com> domain name because Respondent is not commonly known by the domain name and Complainant did not authorize or license Respondent to use the AMAZON mark. Additionally, Respondent fails to use the at-issue domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent passes off as Complainant and promotes alternative services to those of Complainant.
Respondent registered and uses the <amazonft.com> domain name in bad faith. Respondent offers the at-issue domain name for sale. Respondent also disrupts Complainant’s business for its own commercial gain by diverting Internet traffic to a competing webpage. Finally, Respondent had actual knowledge of Complainant’s rights in the AMAZON mark when it registered the at-issue domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the AMAZON mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the AMAZON trademark.
Respondent uses the at-issue domain name to address a webpage offering competing services.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the AMAZON mark with the USPTO demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <amazonft.com> domain name consists of Complainant’s AMAZON trademark followed by the letters “ft,” with all followed by the top-level domain name “.com.” Under the Policy the differences between Respondent’s domain name and Complainant’s trademark do nothing to distinguish the <amazonft.com> domain name from the AMAZON mark. Therefore, the Panel concludes that Respondent’s <amazonft.com> domain name is confusingly similar to Complainant’s AMAZON trademark. See Bittrex, Inc. v. Sergey Valerievich Kireev / Kireev, FA 1784651 (Forum June 5, 2018) (holding that the domain name consists of the BITTREX mark and adds “the letters ‘btc’ and the gTLD .com which do not distinguish the Domain Name from Complainant’s mark.”).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶ 4(c) circumstances Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name. See Charter Communications Holding Company, LLC v. Taha Shaikh / Tskdesigners, FA 1814475 (Forum Nov. 25, 2018) (finding no rights or legitimate interests in <spectrumfeature.com> because complainant never gave respondent permission to use the mark in any manner and “Panels may use these assertions as evidence that no rights or legitimate interests exist in a disputed domain name.”).
The WHOIS information for <amazonft.com> indicates that “Sk Muktar” is the domain name’s registrant. There is nothing in the record before the Panel that indicates that Respondent is otherwise known by the <amazonft.com> domain name. As such, the Panel finds that Respondent is not commonly known by the at-issue domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent uses the at-issue domain name to pass itself off as Complainant and promote alternative services to those offered by Complainant. The webpage addressed by <amazonft.com> uses Complainant’s AMAZON mark to promote or link to alternative music or video streams, downloads, charts, playlists, or search tools all of which are offered by Complainant. Respondent brands its services as AMAZON FREE TUBE without any disclaimers or effort to distinguish itself from AMAZON. Such use of the domain name in a is not indicative of a bona fide offering of goods or services under Policy ¶¶ 4(c)(i), nor of a non-commercial or fair use under Policy ¶¶ 4(c)(iii). See Coryn Group, Inc. v. Media Insight, FA 198959 (Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert internet users to a website that offered services that competed with those offered by the complainant under its marks).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
Respondent’s <amazonft.com> domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present that compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First, Complainant argues that Respondent is offering the domain name for sale pursuant to Policy ¶ 4(b)(i) proffering as evidence two third party webpages that state or reference that the at-issue domain name is listed for sale for $300. However, the copies of third-party webpages submitted by Complainant, without more, are unavailing. There is nothing in the record that supports the necessary conclusion under Policy ¶ 4(b)(i) that Respondent initiated or endorsed the purported online listings or that Respondent was even aware that such listings existed. Without evidence of some causual link between Respondent and the online listings, the Panel is unable to find that the domain name was actually offered for-sale by Respondent pursuant to Policy ¶ 4(b)(i) or otherwise.
Next, Respondent’s use of the at-issue domain name as discussed above regarding rights and legitimate interests disrupts Complainant’s business for Respondent’s commercial gain by diverting internet traffic to a webpage pretending to be endorsed by Complainant and offering services that compete with offerings by Complainant. Respondent’s use of <amazonft.com> shows Respondent’s bad faith per Policy ¶¶ 4(b)(iii) and (iv). See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”).
Finally, Respondent registered its confusingly similar <amazonft.com> domain name knowing that Complainant had trademark rights in AMAZON. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark and from Respondent’s use of the domain name to compete with Complainant. Respondent’s prior knowledge of Complainant's trademark demonstrates that Respondent registered and used its <amazonft.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name"); see also Victoria’s Secret Stores Brand Mgmt., Inc. v. Michael Bach, FA 1426668 (Forum Mar. 2, 2012) (“Although Complainant has not submitted evidence indicating actual knowledge by Respondent of its rights in the trademark, the Panel finds that, due to the fame of Complainant’s [VICTORIA’S SECRET] mark, Respondent had actual notice at the time of the domain name registration and therefore registered the domain name in bad faith under Policy ¶ 4(a)(iii).”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amazonft.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: September 20, 2021
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