Amazon Technologies, Inc. v. Deep aaron / Tech Base Help
Claim Number: FA1605001674975
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Deep aaron / Tech Base Help (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <kindleonlinehelp.com> and <kindle-support.biz>, registered with GoDaddy.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 13, 2016; the Forum received payment on May 13, 2016.
On May 16, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <kindleonlinehelp.com> and <kindle-support.biz> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 May 16, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 6, 2016 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@kindleonlinehelp.com, postmaster@kindle-support.biz. Also on May 16, 2016, 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 June 13, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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.
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 contends that the Respondent for the <kindleonlinehelp.com> and <kindle-support.biz> domain names is the same individual or entity because the email addresses, phone numbers, and IP addresses are identical for the disputed domain names. See Compl., at Attached Ex. A. In addition, the resolving websites of each disputed domain name promote the same phone number. See Compl., at Attached Exs. F–G.
The Panel finds that Complainant has presented sufficient evidence demonstrating that the listed entities are jointly controlled, and effectively registered, by the same domain name holder, using multiple aliases.
A. Complainant’s Contentions
1. Complainant uses the KINDLE mark in connection with its production of electronic reading devices. Complainant has registered the KINDLE mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,694,267, registered Oct. 6, 2009), which demonstrates rights in the mark. See Compl., at Attached Ex. E. Respondent’s <kindleonlinehelp.com> domain is confusingly similar to the KINDLE mark as it incorporates the mark entirely and only adds the descriptive words “online” and “help” and the generic top-level domain (“gTLD") “.com.” The <kindle-support.biz> domain is confusingly similar to the KINDLE mark as it incorporates the mark entirely and only adds the descriptive word “support,” a hyphen, and the gTLD “.biz.”
2. Respondent has no rights or legitimate interests in the <kindleonlinehelp.com> and <kindle-support.biz> domain names. Respondent is not commonly known by the disputed domain names. Respondent is neither making a bona fide offering of goods or services nor a legitimate noncommercial or fair use through the <kindleonlinehelp.com> and <kindle-support.biz> domain names. Rather, the domain names each resolve to websites promoting technical support services for Complainant’s Kindle device in competition with the technical support services offered by Complainant. Compare Compl., at Attached Ex. D (Complainant’s online support services), with Compl., at Attached Exs. F–G (the resolving websites for the <kindleonlinehelp.com> and <kindle-support.biz> domain names).
3. Respondent’s registration and use of the <kindleonlinehelp.com> and <kindle-support.biz> domain names serves as a disruption of Complainant’s legitimate business purposes pursuant to Policy ¶ 4(b)(iii) because Respondent uses the domain name to promote its competing technical support services, as well as promoting competing products. See Compl., at Attached Exs. F–G. Further, Respondent has attempted to attract Internet users to its site for commercial gain by creating confusion as to the source, sponsorship, affiliation, or endorsement of the websites at the <kindleonlinehelp.com> and <kindle-support.biz> domain names. Respondent's reference to Complainant and Complainant’s products and services at the resolving websites indicates that Respondent had actual knowledge of Complainant's mark and rights.
B. Respondent’s Contentions
1. Respondent did not submit a response.
1. Respondent’s <kindleonlinehelp.com> and <kindle-support.biz> domain names are confusingly similar to Complainant’s KINDLE mark.
2. Respondent does not have any rights or legitimate interests in the <kindleonlinehelp.com> and <kindle-support.biz> domain names.
3. Respondent registered or used the <kindleonlinehelp.com> and <kindle-support.biz> domain names in bad faith.
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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant uses the KINDLE mark in connection with its production of electronic reading devices. Complainant claims it has registered the KINDLE mark with the USPTO (e.g., Reg. No. 3,694,267, registered Oct. 6, 2009), which it contends demonstrates rights in the mark. See Compl., at Attached Ex. E. Panels have found registration with the USPTO to be sufficient to establish rights in a trademark, even where the respondent operates in a different country. See Advance Auto Parts, Inc. d/b/a Advance Auto Innovations, LLC v. Privacy Ltd. Disclosed Agent for YOLAPT / Domain Admin, FA 1625582 (Forum July 23, 2015) (holding that Complainant’s USPTO registration is sufficient under Policy ¶ 4(a)(i), even though Respondent reportedly resides in the Isle of Man). Therefore, the Panel sees that Complainant has demonstrated rights in the KINDLE mark under Policy ¶ 4(a)(i), even though Respondent reportedly resides in India.
Next, Complainant argues that Respondent’s <kindleonlinehelp.com> domain name is confusingly similar to the KINDLE mark as it incorporates the mark entirely and only adds the descriptive words “online” and “help” and the gTLD “.com.” Complainant also argues that the <kindle-support.biz> domain name is confusingly similar to the KINDLE mark as it incorporates the mark entirely and only adds the descriptive word “support,” a hyphen, and the gTLD “.biz.” Panels have found such alterations to marks to be insufficient in overcoming a finding of confusing similarity under Policy ¶ 4(a)(i). See Broadcom Corp. v. Domain Depot, FA 96854 (Forum Apr. 23, 2001) (finding the <broadcomonline.com> domain name is confusingly similar to the complainant’s BROADCOM mark); see also Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding that the addition of the generic term “finance,” which described the complainant’s financial services business, as well as a gTLD, did not sufficiently distinguish the respondent’s disputed domain name from the complainant’s mark under Policy ¶ 4(a)(i)); see also Health Devices Corp. v. Aspen S T C, FA 158254 (Forum July 1, 2003) (“[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶ 4(a)(i).”). The Panel therefore agrees that Respondent’s <kindleonlinehelp.com> and <kindle-support.biz> domain names are confusingly similar to the KINDLE 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), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent has no rights or legitimate interests in the <kindleonlinehelp.com> and <kindle-support.biz> domain names. First, Complainant asserts that Respondent is not commonly known by the disputed domain names. The Panel sees that the WHOIS information regarding the <kindleonlinehelp.com> domain name lists “Deep Aaron” as registrant. The WHOIS information regarding the <kindle-support.biz> domain name lists “Tech Base Help” as registrant. Complainant also asserts that it has not given Respondent permission to use its KINDLE mark. Respondent has not submitted a response in this proceeding. Therefore, in light of the available evidence, the Panel agrees there is no basis to find Respondent commonly known by the disputed domain name per 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 disputed 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).
Further, Complainant argues that Respondent is neither making a bona fide offering of goods or services nor a legitimate noncommercial or fair use through the <kindleonlinehelp.com> and <kindle-support.biz> domain names. Rather, Complainant contends that the domain names each resolve to websites promoting technical support services for Complainant’s Kindle device in competition with the technical support services offered by Complainant. Compare Compl., at Attached Ex. D (Complainant’s online support services), with Compl., at Attached Exs. F–G (the resolving websites for the <kindleonlinehelp.com> and <kindle-support.biz> domain names). Complainant further contends that Respondent is using the disputed domain names to impersonate Complainant by including similar images and marks on the page, and by claiming to be “Amazon technical support” when users call the number presented on both websites. See Compl., at Attached Exs. F–H. Panels have found a respondent’s use of a complainant’s mark either to operate a competing website or to pass a website off as belonging to a complainant not to constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Upwork Global Inc. v. Shoaib Malik, FA 1654759 (Forum February 3, 2016) (finding that Complainant provides freelance talent services, and that Respondent competes with Complainant by promoting freelance talent services through the disputed domain’s resolving webpage, which is neither a bona fide offering of goods or services, nor is it a legitimate noncommercial or fair use); see also 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). Therefore, the Panel agrees that Respondent’s <kindleonlinehelp.com> and <kindle-support.biz> domain names constitute neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) and (iii).
Complainant contends that Respondent’s registration and use of the <kindleonlinehelp.com> and <kindle-support.biz> domain names serves as a disruption of Complainant’s legitimate business purposes pursuant to Policy ¶ 4(b)(iii) because Respondent uses the domain names to promote its competing technical support services, as well as to promote competing products. See Compl., at Attached Exs. F–G. Panels have found a respondent’s diversion of Internet users to its own services in competition with the services of a complainant to constitute bad faith disruption pursuant to Policy ¶ 4(b)(iii). See Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii).”). Therefore, the Panel agrees that Respondent’s registration and use of the <kindleonlinehelp.com> and <kindle-support.biz> domain names constitutes bad faith disruption under Policy ¶ 4(b)(iii).
Further, Complainant argues that Respondent has attempted to attract Internet users to its site for commercial gain by creating confusion as to the source, sponsorship, affiliation, or endorsement of the websites at the <kindleonlinehelp.com> and <kindle-support.biz> domain names. Complainant contends that Respondent registered the domain names to create a likelihood of confusion with Complainant and Complainant’s mark in order to profit from users looking for Complainant’s support services website. The Panel agrees with Complainant and holds that Internet user confusion that results in the redirection to Respondent’s competing website constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA1409001579141 (Forum October 15, 2014) (“Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant.”).
Complainant contends that Respondent uses the domains in connection with a fraudulent scheme to create confusion with Complainant. Specifically, Complainant argues that when Respondent was asked if it is Amazon.com, it responded by saying, “[Y]es this is Amazon technical support.” Panels have decided that a respondent’s use of a domain to intentionally attract Internet users to a fraudulent website by using a complainant’s famous marks and likeness is evidence of bad faith under Policy ¶ 4(b)(iv). See H-D Michigan, Inc. v. Petersons Auto., FA 135608 (Nat. Arb. Forum Jan. 8, 2003) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iv) through the respondent’s registration and use of the infringing domain name to intentionally attempt to attract Internet users to its fraudulent website by using the complainant’s famous marks and likeness). As such, the Panel finds that Respondent has engaged in bad faith registration and use per Policy ¶ 4(b)(iv).
Complainant argues that Respondent’s prominent display of images of Complainant’s products is evidence of Respondent’s attempt to pass itself off as Complainant in violation of Policy ¶ 4(b)(iv). Panels have held that a respondent’s use of a domain to pass itself off as a complainant constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”). For this reason, the Panel finds that Respondent registered and is using the domains in bad faith pursuant to Policy ¶ 4(b)(iv).
Complainant argues that based on the fame of its KINDLE mark, Respondent had actual knowledge of Complainant's rights in the mark at the time the disputed domain was registered. Complainant also argues that Respondent's reference to Complainant and Complainant’s products and services at the resolving websites indicates that Respondent had actual knowledge of Complainant's mark and rights. Panels have held that a respondent demonstrated bad faith pursuant to Policy ¶ 4(a)(iii) where the respondent was well-aware of the complainant’s mark at the time the disputed domain name was registered. See Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration). Accordingly, the Panel finds that Respondent registered the disputed domain names with actual knowledge of Complainant’s mark, thereby violating 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 <kindleonlinehelp.com> and <kindle-support.biz> domain names be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: June 27, 2016
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