Amazon Technologies, Inc. v. David A. McFalls
Claim Number: FA2112001975864
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is David A. McFalls (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <blink-wificamera.live>, 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.
Ho-Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 5, 2021; the Forum received payment on December 5, 2021.
On December 6, 2021, Dynadot, LLC confirmed by e-mail to the Forum that the <blink-wificamera.live> 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 December 10, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 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-wificamera.live. Also on December 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 January 5, 2022, 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 name be transferred from Respondent to Complainant.
A. Complainant
i) Complainant is a well-known global technology company. Complainant has rights in the BLINK mark through its registrations with various trademark agencies (e.g. Japan Patent and Office (“JPO”) Reg. 6,280,519, registered Aug. 14, 2020; Germany Patent and Trademark Office (“GPTMO”) Reg. 726,217, registered June 18, 2018). The disputed domain name is identical or confusingly similar to Complainant’s mark as it incorporates the mark in its entirety and adds a hyphen and the words “wifi camera”, and the “.live” generic top-level domain (“gTLD”).
ii) Respondent lacks rights and legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its BLINK mark in the disputed domain name. Respondent does not use the disputed domain name for any bona fide offerings of goods or services, nor any legitimate noncommercial or fair uses, but instead hosts competing products on the disputed domain name’s resolving website.
iii) Respondent registered and uses the disputed domain name in bad faith. Respondent disrupts Complainant’s business for commercial gain by hosting competing products. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the BLINK mark. Respondent provided false WHOIS Information.
B. Respondent
Respondent did not submit a response in this proceeding.
1. The disputed domain name was registered on October 21, 2021.
2. Complainant has established rights in the BLINK mark through its registrations with various trademark agencies [e.g. Japan Patent and Office (“JPO”) Reg. 6,280,519, registered Aug. 14, 2020; Germany Patent and Trademark Office (“GPTMO”) Reg. 726,217, registered June 18, 2018].
3. The disputed domain name resolves to an online store that promotes third party cameras.
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 rights in the BLINK mark through its registrations with various trademark agencies (e.g. JPO Reg. 6,280,519, registered Aug. 14, 2020; GPTMO Reg. 726,217, registered June 18, 2018). Registration with the JPO and GPTMO are generally sufficient in demonstrating rights in a mark under Policy ¶ 4(a)(i). See National Academy of Recording Arts & Sciences, Inc..com v. Xserver XSERVER Inc. / XSERVER Inc., FA 1695259 (Forum Nov. 7, 2016) (affirming complainant’s rights in a mark that had been registered to it under the Japan Patent Office); see also Zweibruder Stahlwarenkontor GmbH LLC v. Jinhody Technology Co. Ltd. / Mr. Wu, FA 1431390 (Forum Apr. 25, 2012) (concluding that Complainant’s registrations with the GPTMO for its LED-LENSER mark were sufficient under Policy ¶ 4(a)(i)). Therefore, the Panel finds Complainant has established rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that the disputed domain name is identical or confusingly similar to Complainant’s BLINK mark. Under Policy ¶ 4(a)(i), adding generic or descriptive words, along with a hyphen and a gTLD is generally insufficient in differentiating a disputed domain name from the mark it incorporates. See Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II v. Svensson Viljae, FA 1784650 (Forum June 1, 2018) (finding confusing similarity where “[t]he disputed domain name <skechers-outlet.com> adds a hyphen and the generic term ‘outlet’ to Complainant's registered SKECHERS mark, and appends the ‘.com’ top-level domain.”). The disputed domain name incorporates Complainant’s BLINK mark in its entirety and adds a hyphen, the words “wifi camera”, and the “.live” gTLD. Therefore, the Panel finds the disputed domain name is confusingly similar to Complainant’s mark under 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 is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its BLINK mark in the disputed domain name. Under Policy ¶ 4(c)(ii), where a response is lacking, relevant WHOIS information may demonstrate that a Respondent is not commonly known by the disputed domain name, while a lack of evidence demonstrating otherwise may affirm a Complainant’s assertion that it never authorized or licensed Respondent to use its mark in a disputed domain name. See SPTC, Inc. and Sotheby’s v. Tony Yeh shiun, FA 1810835 (Forum Nov. 13, 2018) (finding no rights or legitimate interests in the <sothebys.email> domain name where the WHOIS identified Respondent as “Tony Yeh shiun,” Complainant never authorized or permitted Respondent to use the SOTHEBY’S mark, and Respondent failed to submit a response.). The WHOIS of record identifies Respondent as “David A. McFalls”. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant argues that Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use. Under Policy ¶¶ 4(c)(i) and (iii), using a disputed domain name to offer competing goods or services is generally not considered a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Complainant provides screenshots of the disputed domain name’s resolving website, which features related and competing products for sale. Therefore, the Panel finds that Respondent does not use the disputed domain name for any bona fide offerings of goods or services, nor any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
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 name.
Complainant argues that Respondent disrupts Complainant’s business for commercial gain with the disputed domain name. Under Policy ¶¶ 4(b)(iii) and (iv), using a disputed domain name to host competing products or services is generally considered evidence of bad faith registration and use. See Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Forum Aug. 1, 2006) (finding that the respondent registered and used the <classicmetalroofing.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii) by redirecting Internet users to the respondent’s competing website); 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).”). The Panel recalls Complainant’s screenshots of the disputed domain name’s resolving website, which features competing products for sale. Therefore, if the Panel finds Respondent registered and uses the disputed domain name in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Complainant further argues that Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the BLINK mark. Under Policy ¶ 4(a)(iii), actual knowledge is generally sufficient in demonstrating bad faith, and may be established through incorporation of a mark into a domain name, as well as notoriety of a complainant’s mark and a respondent’s use of the disputed domain name. See Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum Jan. 5, 2018) (“[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.”). The Panel recalls Complainant’s screenshots of the disputed domain name’s resolving website, which features competing products for sale, as well as Complainant’s mark. Therefore, the Panel infers, due to the manner of use of the disputed domain name that Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in its mark, which supports a finding of bad faith registration 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-wificamera.live> domain name be TRANSFERRED from Respondent to Complainant.
Ho-Hyun Nahm, Esq., Panelist
Dated: January 10, 2022
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