Amazon Technologies, Inc. v. Eileen Cuevas
Claim Number: FA2201001982479
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Texas, USA. Respondent is Eileen Cuevas (“Respondent”), Viet Nam.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <blinkhome247.com>, registered with NameCheap, Inc..
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 January 28, 2022; the Forum received payment on January 28, 2022.
On January 28, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <blinkhome247.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 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@blinkhome247.com. Also on February 1, 2022, 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 February 23, 2022, 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 is one of the world’s leading retailers, offering products and services to more than 100 countries.
Complainant has rights in the BLINK mark through registration of the mark with trademark authorities around the world.
Respondent’s <blinkhome247.com> domain name is confusingly similar to Complainant’s BLINK mark. Respondent incorporates the mark in its entirety and adds the generic term “home” along with the numerals “247” and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <blinkhome247.com> domain name as Respondent is not commonly known by the at-issue domain name nor did Complainant authorize Respondent to use the BLINK mark in any way. Respondent failed to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent’s domain name resolves to a webpage that offers products related to Complainant’s mark while also making use of Complainant’s BLINK mark.
Respondent registered and used the <blinkhome247.com> domain in bad faith as Respondent attempts to pass off as Complainant by offering products related to Complainant’s mark while displaying the BLINK mark and other intellectual property on its resolving webpage. Respondent 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 failed to submit a Response in this proceeding.
Complainant has rights in the BLINK trademark.
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 BLINK trademark.
Respondent uses the <blinkhome247.com> domain name to address an online store pretending to be sponsored by Complainant and there offering products related to those offered by Complainant.
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 shows that it has a USPTO registration for its BLINK trademark as well as other national registrations for such mark worldwide. Registering a mark with a national registry, including the USPTO, is sufficient to establish rights in a mark under the Policy. See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sept. 4, 2018) (“Complainant has rights in the GMAIL mark based upon its registration of the mark with numerous trademark agencies around the world.”); see also Bloomberg Finance L.P. v. Jimmy Yau, FA 1764034 (Forum Jan. 25, 2018) (“The Panel finds that complainant has rights in BLOOMBERG mark under Policy ¶ 4(a)(i) based upon its registration with multiple trademark agencies, including the USPTO.”).
Respondent’s <blinkhome247.com> domain name contains Complainant’s BLINK trademark followed by the suggestive term “home” and the number “247.” The domain name concludes with a necessary top-level name, here “.com.” The differences between Respondent’s domain name and Complainant’s trademark are insufficient to distinguish the <blinkhome247.com> domain name from Complainant’s BLINK trademark under Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <blinkhome247.com> domain name is confusingly similar to Complainant’s trademark. 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 Twentieth Century Fox Film Corporation v. Domain Admin / PrivacyProtect.org / Denis Ferulev, FA 1652313 (Forum Jan. 19, 2016) (“Complainant notes that the domain name contains the recognised acronym for its FAMILY GUY mark, along with the number ‘24’ … the Panel finds that the <fg24.biz> domain name is confusingly similar to the FAMILY GUY mark under Policy ¶ 4(a)(i).”).
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, 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 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 at-issue domain name identifies the domain name’s registrant as “Eileen Cuevas” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <blinkhome247.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <blinkhome247.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the at-issue domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Respondent uses its confusingly similar <blinkhome247.com> domain name to pass itself off as Complainant and address a webpage pretending to be associated with Complainant. Respondent’s <blinkhome247.com> domain name addresses a website that promotes products related to Complainant’s trademark while making use of the BLINK trademark thereon. Respondent thereby creates the false impression that Respondent’s <blinkhome247.com> website is somehow associated with or sponsored by Complainant. Respondent’s use of the confusingly similar domain name in this manners indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (“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).”), 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).”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
Respondent’s <blinkhome247.com> domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
Respondent disrupts Complainant’s business by using its confusingly similar domain name to pass itself off as Complainant and compete with Complainant regarding BLINK products. Respondent’s <blinkhome247.com> website is dressed with the BLINK trademark and logo to appear as if it is sponsored by Complainant. Respondent seeks to promote BLINK related products at its BLINKHOME247 entitled online store by capitalizing on the misperception that it deceitfully created concerning <blinkhome247.com>’s sponsorship. By passing itself off as Complainant and inappropriately capitalizing on Complainant’s well-known trademark, Respondent shows bad faith under Policy ¶¶ 4(b)(iii) and (iv). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum Jan. 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under 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.”).
Moreover, Respondent had actual knowledge of Complainant’s rights in the BLINK mark at the time it registered <blinkhome247.com> as a domain name. Respondent’s actual knowledge is evident from the notoriety of the BLINK trademark; from Respondent’s incorporation of Complainant’s trademark into the at-issue domain name along with the suggestive term “home”; and from Respondent’s use of the domain name to impersonate Complainant and trade off Complainant’s BLINK trademark as discussed elsewhere herein. Respondent’s registration and use of <blinkhome247.com> with knowledge of Complainant’s rights in such domain name further shows Respondent’s 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, 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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <blinkhome247.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: February 24, 2022
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