Amazon Technologies, Inc. v. ling liu
Claim Number: FA2111001973194
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is ling liu (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <blinkofhome.com>, <blinkonhome.com>, and <blinktohome.com>, registered with NameSilo, 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.
Ho-Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 14, 2021; the Forum received payment on November 14, 2021.
On November 15, 2021, NameSilo, LLC confirmed by e-mail to the Forum that the <blinkofhome.com>, <blinkonhome.com>, and <blinktohome.com> domain names are registered with NameSilo, LLC and that Respondent is the current registrant of the names. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 November 16, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 6, 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@blinkofhome.com, postmaster@blinkonhome.com, postmaster@blinktohome.com. Also on November 16, 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 December 9, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho-Hyun Nahm, Esq. 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 names be transferred from Respondent to Complainant.
A. Complainant
i) Complainant offers affordable, innovative, and easy to use smart home security devices. Complainant has rights in the BLINK mark through its registration of the mark with various trademark authorities around the world. The disputed domain names are confusingly similar to Complainant’s BLINK mark. Respondent incorporates the BLINK mark in its entirety and adds either “of,” “on,” or “to,” to the term “home” along with the “.com” generic top-level domain (“gTLD”).
ii) Respondent lacks rights or legitimate interests in the disputed domain names as Respondent is not commonly known by the disputed domain names nor did Complainant authorize Respondent to use the BLINK mark in any way. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the disputed domain names resolve to webpages that display Complainant’s BLINK mark in order to confuse Internet users and pass off counterfeit and fake versions of Complainant’s products.
iii) Respondent registered and used the disputed domain names in bad faith as Respondent attempts to pass off as Complainant by making use of the BLINK mark and offering counterfeit versions of the products. Respondent also had actual knowledge of Complainant’s rights in the BLINK mark due to the longstanding use and fame of the mark in commerce.
B. Respondent
Respondent did not submit a Response in this proceeding.
1. The <blinkofhome.com> and <blinkonhome.com> domain names were registered on November 8, 2021 and the <blinktohome.com> domain name was registered on November 7, 2021.
2. Complainant has established its rights in the BLINK mark through its registration of the mark with various trademark authorities around the world.
3. The disputed domain names’ resolving webpages display Complainant’s BLINK mark and offer products associated with Complainant’s mark.
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”).
Complainant claims to have rights in the BLINK mark through its registration of the mark with various trademark authorities around the world. Registration of a mark with multiple trademark authorities around the world is sufficient to show rights in mark per Policy ¶ 4(a)(i). See Alibaba Group Holding Limited v. YINGFENG WANG, FA 1568531 (Forum Aug. 21, 2014) (“Complainant has rights in the ALIBABA mark under the Policy through registration with trademark authorities in numerous countries around the world.”). Complainant has provided the Panel with multiple registrations for the BLINK mark with trademark authorities from around the world. Therefore, the Panel finds that Complainant has established rights in the BLINK mark per Policy ¶ 4(a)(i).
Complainant argues that the <blinkofhome.com>, <blinkonhome.com>, and <blinktohome.com> domain names are confusingly similar to Complainant’s BLINK mark. Registration of a domain name that contains a mark in its entirety and adds generic terms along with a gTLD does not distinguish the domain name from the mark per Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)). Complainant argues that Respondent incorporates the BLINK mark in its entirety and adds either “of,” “on,” or “to,” to the term “home” along with the “.com” gTLD. Therefore, the Panel finds that all of the disputed domain names are confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Complainant argues Respondent lacks rights or legitimate interest in the disputed domain names as Respondent is not commonly known by the disputed domain names nor has Respondent been given license or consent to use the BLINK mark or register domain names using Complainant’s mark. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain names lists the registrant as “ling liu” and there is no other evidence to suggest that Respondent was authorized to use the BLINK mark or was commonly known by the disputed domain names. Therefore, the Panel finds Respondent is not commonly known by the disputed domain names per Policy ¶ 4(c)(ii).
Complainant argues that Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the disputed domain names resolve to webpages that display Complainant’s BLINK mark in order to confuse Internet users and pass off counterfeit and fake versions of Complainant’s products. Use of a disputed domain name to pass off as a complainant and selling counterfeit versions of its products is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii). See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”), see also Russell & Bromley Limited v. Li Wei Wei, FA 1752021 (Forum Nov. 17, 2017) (“The respondent’s use of the disputed domain name to pass itself off as the complainant to advertise and sell unauthorized products of the complainant is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii).”). Complainant has provided the Panel with screenshots of the disputed domain names’ resolving webpages that show Complainant’s BLINK mark on display and offers products associated with Complainant’s mark.
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain names.
Complainant argues that Respondent registered and used the disputed domain names in bad faith as Respondent attempts to pass off as Complainant by making use of the BLINK mark and offering counterfeit versions of the products. Use of a disputed domain name to pass off as a complainant and offer competing or counterfeit versions of its products may be evidence of bad faith per Policy ¶ 4(b)(iii) and (iv). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding bad faith per Policy ¶¶ 4(b)(iii) and (iv) where the respondent used the disputed domain name to resolve to a website upon which the respondent passes off as the complainant and offers online cryptocurrency services in direct competition with the complainant’s business), see also Guess? IP Holder L.P. and Guess?, Inc. v. LI FANGLIN, FA 1610067 (Forum Apr. 25, 2015) (finding respondent registered and used the domain name in bad faith per Policy ¶ 4(b)(iii) because the respondent used the resolving website to sell the complainant’s products, using images copied directly from the complainant’s website), 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.”). Complainant has provided the Panel with screenshots of the disputed domain names’ resolving webpages that show Complainant’s BLINK mark on display and offers products associated with Complainant’s mark. Therefore, the Panel finds that Respondent registered and used the disputed domain names in bad faith per Policy ¶ 4(b)(iii) or (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <blinkofhome.com>, <blinkonhome.com>, and <blinktohome.com> domain names be TRANSFERRED from Respondent to Complainant.
Ho-Hyun Nahm, Esq., Panelist
Dated: December 14, 2021
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