Amazon Technologies, Inc. v. Ony Onv
Claim Number: FA2108001961664
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Ony Onv (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <blink-us.store>, registered with Dynadot, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 30, 2021; the Forum received payment on August 30, 2021.
On September 8, 2021, Dynadot, LLC confirmed by e-mail to the Forum that the <blink-us.store> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 September 10, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 30, 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@blink-us.store. Also on September 10, 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 October 4, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it launched Amazon.com in July 1995 and today is one of the world’s leading retailers, offering products and services to more than 100 countries around the globe. Complainant also operates the website <blinkforhome.com> and offers Blink-branded smart home security devices that are affordable, innovative, and easy-to-use. Armed with two-way audio, HD video, customizable motion detection, and more — Blink smart home security devices allow consumers to see, hear, and speak from the free Blink Home Monitor smartphone app. Complainant introduced Blink in a 2014 Kickstarter campaign and began shipping Blink devices in 2015. Today Blink battery-powered Outdoor and Indoor cameras and the Blink Mini plug-in cam help consumers protect what matters most no matter where they are. Blink devices and accessories can be purchased at the Blink store on Amazon.com. Complainant uses the Blink logo and the Amazon logo to promote its Blink devices and services. Complainant has rights in the BLINK mark through its registration in Switzerland and other countries in 2018.
Complainant alleges that the disputed domain name is confusingly similar to its BLINK mark, as it incorporates the mark in its entirety, merely adding a hyphen, the geographic term “US”, and the “.store” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain name as it is not commonly known by the disputed domain name and is neither an authorized user nor licensee of the BLINK mark. Additionally, Respondent does not use the disputed domain name for any bona fide offer of goods or services, nor for any legitimate noncommercial or fair use, but rather to pass off as Complainant in furtherance of a phishing scheme: the resolving website alleges that Respondent is a subsidiary of Complainant. Respondent also uses the disputed domain name to offer unauthorized or counterfeit versions of Complainant’s products. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent is the same individual or entity from a previous UDRP decision, demonstrating a pattern of bad faith registration. Respondent uses the disputed domain name to pass off as Complainant in order to operate a phishing scheme, disrupting Complainant’s business and likely attracting Internet users to the resolving website for commercial gain by offering unauthorized or counterfeit versions of Complainant’s products. Furthermore, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the BLINK mark: the resolving website displays Complainant’s mark and logo. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark BLINK and uses it to market home security devices.
Complainant’s rights in its mark date back to at least 2018.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website displays Complainant’s mark and logo, identifies Respondent as a subsidiary of Complainant, requests user’s account name and password, and purports to offer Complainant’s products. Further, Respondent was found to have registered and used domain names in bad faith in a previous proceeding.
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 disputed domain name incorporates Complainant’s BLINK mark in its entirety, merely adding a hyphen, the geographic term “US”, and the “.store” gTLD. Such changes do not necessarily negate confusing similarity between a domain name and a mark under Policy ¶ 4(a)(i). See General Motors LLC v. Domain Admin, Privacy Protection Service INC d/b/a PrivacyProtect.org, FA 1656166 (Forum Feb. 12, 2016) (finding respondent’s <gm-uzbekistan.com> domain name confusingly similar to complainant’s GM mark as the addition of the geographic term “uzbekistan” is inconsequential to a Policy ¶ 4(a)(i) analysis). Thus, the finds that the <blink-us.store> domain name is confusingly similar to Complainant’s BLINK mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: when a response is lacking, relevant WHOIS information may demonstrate that a Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS information of record identifies “Ony Onv” as the registrant of the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name to attempt to pass itself off as Complainant in furtherance of a phishing scheme, and to offer unauthorized or counterfeit versions of Complainant’s products: Complainant presents evidence showing that the resolving website displays Complainant’s mark and logo, identifies Respondent as a subsidiary of Complainant, requests user’s account name and password, and purports to offer Complainant’s products. Previous Panels have held that such use of an infringing domain name does not qualify as either a bona fide offer or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business); see also HUGO BOSS Trademark Management GmbH & Co., KG; and HUGO BOSS AG v. lupe hag / Lupe Haag, Case No. FA1801001768931 (Forum Mar. 1, 2018) (finding that the respondent lacked rights or legitimate interests in or to the disputed domain name where the respondent had no permission or license to register the disputed domain name, was not commonly known by the disputed domain name, and was not making a bona fide offering of goods or services or a legitimate non-commercial or fair use of the domain name because the respondent was not an authorized reseller of the complainant’s goods and was offering for sale counterfeit goods); see also DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”). The Panel therefore finds that Respondent fails to use the disputed domain name to make a bona fide offer or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted Respondent uses the disputed domain name to attempt to pass off as Complainant in furtherance of a phishing scheme, and to offer unauthorized or counterfeit versions of Complainant’s products. Previous Panels have held that such use of an infringing domain name may demonstrate bad faith disruption and attraction to commercial gain under Policy ¶¶ 4(b)(iii) and (iv). See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that the respondent’s registration and use of the disputed domain name, which displayed a website virtually identical to the complainant’s website, constituted bad faith pursuant to Policy ¶ 4(b)(iii)); see also Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the disputed domain name was registered and used in bad faith where the respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . to perpetrate a fraud upon individual shareholders who respected the goodwill surrounding the AIG mark”); see also Hunter Fan Co. v. MSS, FA 98067 (Forum Aug. 23, 2001) (finding bad faith where the respondent used the disputed domain name to sell the complainant’s products without permission and mislead Internet users by implying that the respondent was affiliated with the complainant); see also Wells Fargo & Co. v. Maniac State, FA 608239 (Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant’s customers); see also Hess Corp. v. GR, FA 770909 (Forum Sept. 19, 2006) (finding that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name). The Panel therefore finds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Further, Respondent is the same entity or individual who previous registered the <blink-outlet.com> and three other domain names, which were transferred to Complainant: Complainant presents evidence showing that the resolving website in the instant case is substantially identical to the resolving website in the cited case, noting in particular the reference to <tools-milwaukee.com> in the “Returning Customers” panel on both login pages. A history of adverse UDRP decisions may demonstrate a pattern of bad faith registrations for Respondent under Policy ¶ 4(b)(ii). See Liberty Mut. Ins. Co. v. Bin g Glu, FA 1036129 (Forum Sept. 2, 2007) (holding prior UDRP proceedings were sufficient evidence of a pattern of bad faith registrations). Thus the Panel finds that Respondent has demonstrated a pattern of bad faith registration and use under Policy ¶ 4(b)(ii).
Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website displays Complainant’s mark and logo. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes 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 <blink-us.store> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: October 4, 2021
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