Amazon Technologies, Inc. v. Zhen Sheng Dai / rijin doujin / leo chen
Claim Number: FA2201001982342
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Texas, United States. Respondent is Zhen Sheng Dai / rijin doujin / leo chen (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <blinkdirect.shop>, <blink-directsales.store>, <blink-discount.store>, and <blinksales-usa.club>, registered with Chengdu West Dimension Digital Technology Co., Ltd.; 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 January 28, 2022; the Forum received payment on January 28, 2022.
On January 28, 2022, Chengdu West Dimension Digital Technology Co., Ltd.; Dynadot, LLC confirmed by e-mail to the Forum that the <blinkdirect.shop>, <blink-directsales.store>, <blink-discount.store>, and <blinksales-usa.club> domain names are registered with Chengdu West Dimension Digital Technology Co., Ltd.; Dynadot, LLC and that Respondent is the current registrant of the names. Chengdu West Dimension Digital Technology Co., Ltd.; Dynadot, LLC has verified that Respondent is bound by the Chengdu West Dimension Digital Technology Co., Ltd.; 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 February 1, 2022, the Forum served the Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of February 22, 2022 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@blinkdirect.shop, postmaster@blink-directsales.store, postmaster@blink-discount.store, postmaster@blinksales-usa.club. Also on February 1, 2022, the Chinese and English language 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 February 23, 2022, 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.
PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDINGS
Prior to discussing the three elements of the Policy, the Panel must decide on the language of the proceedings. The Registration Agreement is written in Chinese, thereby making the language of the proceedings Chinese.
Pursuant to UDRP Rule 11(a), the Panel has the authority to determine a different language for the proceedings, having regard to the circumstances of the case. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Pursuant to Rule 10(b), Respondent must be given a fair opportunity to present its case. Pursuant to Rule 10(c), the Panel may weigh the relative time and expense in enforcing the Chinese language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).
In the present case, the resolving websites are in English; Respondent has received the Commencement Notification in Chinese and has chosen not to respond. Pursuant to Rule 11(a), having regard to the circumstances of the case, the Panel determines that fairness and justice to both parties, and due expedition, are best satisfied by conducting the remainder of the proceedings in English. See H-D U.S.A., LLC v. Yoshihiro Nakazawa, FA 1736477 (Forum July 21, 2017); see also UBS AG v. ratzel laura, FA 1735687 (Forum July 14, 2017).
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
Complainant submits that these domains are owned by the same individual or entity for at least the following reasons:
a) Prior to Complainant’s notices of takedown, the disputed domain names all resolved to substantially similar websites with substantially identical login pages.
b) All the domains were registered in January 2022.
c) All the nominal registrants specify China as registration country.
d) The nominal registrants for <blink-directsales.store> and <blinksales-usa.club> are the same.
e) The disputed domain names <blinksales-usa.club> and <blink-discount.store> where registered on consecutive days (Jan. 4 and 5, 2022).
f) The disputed domain names <blink-directsales.store> and <blinkdirect.shop> were registered on consecutive days (Jan. 23 and 24, 2022).
g) The disputed domain names <blink-directsales.store>, <blink-discount.store>, and <blinksales-usa.club> were registered with the same registrar (Dynadot).
h) All the domains use the same nominal host (Cloudflare).
i) Respondent has been previously held to use multiple aliases.
The Panel finds that the disputed domain names are under common control as they all resolved to substantially similar websites with substantially identical login pages; they were registered within a short period of time; two were registered by the same nominal registrant, three were registered with the same registrar; and all use the same hosting agency. The Panel finds that Complainant has presented sufficient evidence to establish that the disputed domain names were registered by the same domain name holder. See The Valspar Corporation v. Zhou Zhiliang / zhouzhiliang / Zhiliang Zhou / Eric Chow / Visspa Ltd., FA100800133934 (Forum Sept. 28, 2010); see also BBY Solutions, Inc. v. White Apple / Dev Kumar, FA1805001787251 (Forum June 20, 2018).
Consequently, the Panel will rule on all the disputed domain names. Hereafter, those domain names are collectively referred to as “the disputed domain names”, and the registrants are collectively referred to as “Respondent”.
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 cameras and 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. Complainant has rights in the BLINK mark through its registration of the mark in Singapore in 2018. The mark is registered elsewhere around the world and it is famous.
Complainant alleges that the disputed domain names are confusingly similar to its BLINK mark as they incorporate the mark in its entirety and merely add generic terms such as “direct”, “sales”, “discount”, and/or the geographic term “USA”, and/or a hyphen along with various generic top-level domains (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain names as Respondent is not commonly known by the disputed domain name 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 of the disputed domain names. Instead, the disputed domain names resolved to websites that displayed Complainant’s mark and logo, displayed links to online stores that compete with Complainant, and attempted to gather Internet users’ personal information. Complainant cites UDRP precedents to support its position.
Further, says Complainant, 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 in order to confuse internet users and gather their personal information. Respondent had actual knowledge of Complainant’s rights in the BLINK mark due to its use of the mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns rights in the mark BLINK and uses it to market home security devices.
Complainant’s rights in its mark date back to 2018.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain names were registered on 3, 5, and 23 January 2022.
The disputed domain names resolved to websites that displayed Complainant’s mark and logo, displayed links to online stores that compete with Complainant, and attempted to gather Internet users’ personal information.
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 names incorporate Complainant’s BLINK mark in its entirety and merely add generic terms such as “direct”, “sales”, “discount”, and/or the geographic term “USA”, and/or a hyphen along with various generic top-level domains (“gTLD”). Registration of a domain name that includes a mark in its entirety and adds a generic term and/or a geographic term and/or a hyphen and 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)); see also Dell Inc. v. Phrasaeng, FA1708001745812 (Forum Sept. 28, 2017) (“Adding geographical terms does not sufficiently distinguish a domain name from a mark to prevent a finding of confusingly similarity under a Policy ¶ 4(a)(i) analysis); see also Microsoft Corp. v. The Private Whois Privacy Service, FA1302001484502 (Forum Mar. 24, 2013) (“addition of a hyphen or a top level domain name are never significant changes to a trademark under the Policy”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per 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: 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). Here, the WHOIS information for the disputed domain names lists the registrant as “Zhen Sheng Dai / rijin doujin / leo chen”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain names per Policy ¶ 4(c)(ii).
The resolving websites displayed Complainant’s mark and logo and attempted to gather users’ personal information. Use of a disputed domain name to make use of a complainant’s mark in order to confuse internet users and gather personal information is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii). See 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.”), see also 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).”). Therefore the Panel finds that Respondent fails to use the disputed domain names to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii).
In addition, the disputed domain names resolved to websites that hosted links to third party websites some of which compete directly with Complainant. Using a domain name links to competing websites is evidence that a respondent lacks rights and legitimate interests under Policy ¶¶ 4(c)(i) & (iii). See Amazon Technologies, Inc. v. Lin, FA1301001480702 (Forum Feb. 26, 2013) (“Respondent’s use of the disputed domain name to offer competing goods or services is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)”); see also Marvin Lumber and Cedar Co. v. Chan, FA1205001442493 (Forum June 7, 2012) (finding that “sell[ing] products and services in direct competition with those that Complainant offers” was not a bona fide offering of goods or services nor a legitimate noncommercial or fair use). Accordingly, the Panel finds, on this ground also, that Respondent failed to use the disputed domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) & (iii).
For all the above reasons, the Panel finds that the Respondent lacks rights or 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 names.
Indeed, as already noted, Respondent used the disputed domain name to phish for Internet users’ personal information. This is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See 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). Thus the Panel finds bad faith registration and use under Policy ¶ 4(a)(iii).
Further, also as already noted, the disputed domain names resolved to websites that displayed links to websites that compete with Complainant. Panels have found bad faith under Policy ¶ 4(b)(iii) where a respondent used a confusingly similar domain name to resolve to a website displaying links that compete with a complainant. See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Forum Dec. 12, 2007) (“Respondent currently utilizes the disputed domain name, <usaa-insurance.net>, to resolve to a website featuring links to third-party competitors of Complainant. The Panel finds such use establishes Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii).”). Thus the Panel finds that Respondent registered and used the disputed domain names in bad faith per Policy ¶ 4(b)(iii).
Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving websites display 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 <blinkdirect.shop>, <blink-directsales.store>, <blink-discount.store>, and <blinksales-usa.club> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: February 24, 2022
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