Amazon Technologies, Inc. v. Prime One Global LLC / Vengadasaranyan Subramania Iyer
Claim Number: FA2207002006243
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Prime One Global LLC / Vengadasaranyan Subramania Iyer (“Respondent”), Delaware, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <awsstartupcredits.com>, registered with Name.com, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 28, 2022; the Forum received payment on July 28, 2022.
On Jul 31, 2022, Name.com, Inc. confirmed by e-mail to the Forum that the <awsstartupcredits.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, 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 August 1, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 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@awsstartupcredits.com. Also on August 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 August 25, 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.
A. Complainant
Complainant states that it launched <amazon.com> in July 1995 and today is one of the world’s leading retailers. In 2006, Complainant’s Amazon Web Services (AWS) division began offering IT infrastructure services to businesses in the form of web services, now commonly known as cloud computing, and today AWS is the world’s most comprehensive and broadly adopted cloud platform. AWS has continually expanded its services to support virtually any cloud workload, and it now has more than 200 fully featured services spanning compute, storage, databases, analytics, networking, mobile, developer tools, management tools, IoT, security, and enterprise applications. The AWS Cloud spans 84 Availability Zones within 26 geographic regions around the world, with announced plans for 24 more Availability Zones and 8 more AWS Regions in Australia, Canada, India, Israel, New Zealand, Spain, Switzerland, and United Arab Emirates (UAE). Millions of customers—including the fastest-growing startups, largest enterprises, and leading government agencies—are using AWS to lower costs, become more agile, and innovate faster. AWS customers include Accenture, BMW, Bundesliga, Ferrari, Formula 1, GE, Hulu, Ingram Micro, Intel, LG, Maple Leaf Sports & Entertainment, McDonalds, National Geographic, Nasdaq, NFL, NHL, PGA Tour, Philips, Pinterest, Riot Games, Shutterfly, Splunk, and Taco Bell. Complainant’s AWS Activate program offers startups free tools and resources to get started on AWS, including up to $100,000 in service credits. Recipients “may not sell, license, rent, or otherwise transfer any Program benefits,” including service credits. Complainant claims rights in the AWS mark through its registration with multiple trademark agencies, including in the United States in 2019. The mark is famous.
Complainant alleges that the disputed domain name is identical or confusingly similar to its AWS mark as it incorporates the mark in its entirety and merely adds the generic/descriptive terms “startup” and “credits”, as well as the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed to Respondent any rights in the AWS mark. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor for any legitimate non-commercial or fair use. Instead, the resolving website attempts to pass off as Complainant by displaying Complainant’s mark and distinctive logo and purporting to sell AWS Activate startup credits in violation of Complainant’s terms and conditions. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent uses the goodwill associated with Complainant’s AWS mark in the disputed domain name in order to attract users in bad faith. Respondent uses the disputed domain name in order to pass off as Complainant. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the AWS mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark AWS dating back to at least 2019 and uses it to provide cloud computing services.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website attempts to pass off as Complainant by displaying Complainant’s mark and distinctive logo and purporting to sell Complainant’s services.
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 AWS mark in its entirety and merely adds the generic/descriptive terms “startup” and “credits”, as well as the “.com” generic top-level domain (“gTLD”). Under Policy ¶ 4(a)(i), fully incorporating a mark in its entirety and adding generic/descriptive terms fails sufficiently to distinguish a domain name from a registered mark. See Empowered Medical Solutions, Inc. d/b/a QRS-Direct and QRS Magnovit AG v. NULL NULL / QUANTRON RESONANCE SYSTEMS / JIM ANDERSON / HTR / unknown HTR / HTR, FA 1784937 (Forum June 8, 2018) (“Adding or removing descriptive terms or a gTLD is insufficient to differentiate a disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i).”). Further, the addition of the “.com” gTLD is irrelevant when determining whether a disputed domain name is identical or confusingly similar to a protected mark. See Countrywide Fin. Corp. v. Johnson & Sons Sys., FA 1073019 (Forum Oct. 24, 2007) (holding that the addition of the generic top-level domain (“gTLD”) “.com” was irrelevant). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark pursuant to 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: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by a disputed domain name. See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM , FA 740335 (Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record). Here, the WHOIS information of record lists the registrant of the disputed domain name as “Prime One Global LLC / Vengadasaranyan Subramania Iyer”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website attempts to pass off as Complainant by displaying Complainant’s mark and distinctive logo and purporting to sell Complainant’s AWS Activate startup credits. Impersonating a complainant in a confusingly similar domain name’s resolving webpage is neither a bona fide offering of goods or services, nor a legitimate non-commercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services, or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have 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 name.
Indeed, as already noted, Respondent uses the disputed domain name to pass off as Complainant and purport to sell Complainant’s services. This supports a finding of bad faith under Policy ¶ 4(b)(iv). See MetroPCS, Inc. v. Robertson, FA0609000809749 (Forum Nov. 13, 2006) (finding bad faith where the respondent’s web site gave the false impression of being affiliated with the complainant); see also Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also Microsoft Corp. v. Lafont, FA1009001349611 (Forum Nov. 9, 2009) (“intentional appropriation of Complainant’s mark to mislead Internet users and subsequently profit from them reveals bad faith registration and use under Policy ¶ 4(b)(iv)”). Thus the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
Further, 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 <awsstartupcredits.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: August 26, 2022
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