Amazon Technologies, Inc. v. zheng bing zheng bing / zheng bing / zhang jun
Claim Number: FA1610001700366
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by Fabricio Vayra of Perkins Coie LLP, District of Columbia, USA. Respondent is zheng bing zheng bing / zheng bing / zhang jun (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <secureamazoncheckout.com> and <amazonscheckouts.com>, registered with Bizcn.com, Inc. and Xin Net Technology Corporation, respectively.
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 October 28, 2016; the Forum received payment on October 28, 2016.
On October 30, 2016 Xin Net Technology Corporation confirmed by e-mail to the Forum that the <amazonscheckouts.com> domain name is registered with Xin Net Technology Corporation and that Respondent is the current registrant of the name. Xin Net Technology Corporation has verified that Respondent is bound by the Xin Net Technology Corporation 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 October 31, 2016, Bizcn.com, Inc. confirmed by e-mail to the Forum that the <secureamazoncheckout.com> domain name is registered with Bizcn.com, Inc. and that Respondent is the current registrant of the name. Bizcn.com, Inc. has verified that Respondent is bound by the Bizcn.com, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the Policy.
On November 8, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 28, 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@secureamazoncheckout.com, and postmaster@amazonscheckouts.com. Also on November 8, 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 November 29, 2016, 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 names be transferred from Respondent to Complainant.
A. Complainant
i) Complainant registered the AMAZON.COM mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,078,496, registered July 15, 1997). Respondent’s <secureamazoncheckout.com> and <amazonscheckouts.com> are confusingly similar as they incorporate the AMAZON.COM mark entirely while adding the generic terms “secure” and/or “checkout(s)” and adding an “s” to AMAZON.
ii) Respondent has no rights or legitimate interests in <secureamazoncheckout.com> and <amazonscheckouts.com>. The WHOIS identifies “zheng bing zheng bing / zheng bing / zhang jun” as registrant. Respondent is not affiliated with Complainant, nor does it hold any license to use any of Complainant’s marks. Further, Respondent does not use <secureamazoncheckout.com> and <amazonscheckouts.com> in connection with any bona fide offering of goods or services or any legitimate noncommercial or fair use because they redirect Internet users to a website that mimics Complainant’s official website, in an attempt to obtain personal or financial information from Internet users.
iii) Respondent registered and used <secureamazoncheckout.com> and <amazonscheckouts.com> in bad faith. Respondent has used the <secureamazoncheckout.com> to redirect Internet users to the fraudulent website, which uses <amazonscheckouts.com> for the email address “contact@amazonscheckouts.com” spawned from the fraudulent website when Internet users click “Contact Us By Email.” All this use constitutes fraudulent behavior consistent with a likelihood of confusion for commercial gain as per Policy ¶ 4(b)(iv). Furthermore, while Respondent redirects Internet users to a website that is nearly identical to Complainant’s—in a fraudulent scheme to acquire personal and financial information of Internet users—it is clear that Respondent had actual knowledge of Complainant and its rights which demonstrates Respondent’s bad faith under Policy ¶ 4(a)(iii).
B. Respondent
Respondent did not submit a Response in this Proceeding. The Panel notes that Respondent registered <secureamazoncheckout.com> and <amazonscheckouts.com> on or about April 27, 2016 and February 1, 2016.
Complainant established that it had rights in the mark contained in the disputed domain names. Each of the disputed domain names is confusingly similar to Complainant’s protected mark.
Respondent has no rights to or legitimate interests in the disputed domain names.
Respondent registered and used the disputed 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."
Preliminary Issue 1: Supported Language Request
The Panel notes that Complainant requests that the language of this administrative proceeding proceed in the English language. Complainant makes this request in light of the Chinese language Registration Agreement. 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. Factors which previous panels have seen as particularly compelling are: WHOIS information which establishes Respondent in a country which would evince a familiarity with the English language, filing of a trademark registration with an entity which evinces an understanding of the English language, and any evidence (or lack thereof) evincing Respondent’s understanding of the Chinese language included in the Registration Agreement. See The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (panel exercising discretion in deciding that the language of the proceedings advance in English, contrary to the Registration Agreement, based on evidence that respondent has command of the language). Further, the Panel weighs 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.”). Here, Complainant argues that Respondent is capable of continuing in the English language because the domain names are comprised of English terms, the email address created upon and spawned from the disputed domain names is based on English terms (contact@amazonscheckouts.com), and the websites associated with the domain names are entirely in English and target English speakers, inviting users to “Contact Us By Email.”
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
Preliminary Issue 2: 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 domain names are used for a fraudulent scheme (<secureamazoncheckout.com> redirects to the fraudulent website, and <amazonscheckouts.com> is used for the email address “contact@amazonscheckouts.com” spawned from the fraudulent website when Internet users click “Contact Us By Email”); they share the same name servers F1G1NS1.DNSPOS.NET and F1G1NS2.DNSPOD.NET; they list the same website title within WHOIS (Secure Online Payments | Amazon Payments); and they have WHOIS records that follow a similar pattern.
The Panel finds that Complainant has sufficiently presented evidence demonstrating that the listed entities are jointly controlled, the domain names are commonly owned/controlled by a single Respondent who is using multiple aliases.
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 claims it registered the AMAZON.COM mark with the USPTO (e.g., Reg. No. 2,078,496, registered July 15, 1997). USPTO registrations are prima facie evidence of rights under Policy ¶ 4(a)(i). See T-Mobile USA, Inc. dba MetroPCS v. Ryan G Foo / PPA Media Services, FA 1627542 (Forum Aug. 9, 2015) (finding that Complainant has rights in the METROPCS mark through its registration with the United States Patent and Trademark Office.). Therefore, the Panel sees that Complainant has established rights in the AMAZON.COM mark for the purposes of Policy ¶ 4(a)(i).
Next, Complainant argues that Respondent’s <secureamazoncheckout.com> and <amazonscheckouts.com> are confusingly similar as they incorporate the AMAZON.COM mark entirely while adding the generic terms “secure” and/or “checkout(s)” and adding an “s” to AMAZON. No such changes have been found distinguishing. See PathAdvantage Associated v. VistaPrint Technologies Ltd, FA 1625731 (Forum July 23, 2015) (holding that the <pathadvantages.com> domain name was confusingly similar to the PATHADVANTAGE trademark because the domain name “merely adds the letter ‘s’ to Complainant’s mark”); see also Abbott Laboratories v. Miles White, FA 1646590 (Forum Dec. 10, 2015) (holding that the addition of descriptive terms, particularly terms that pertain to complainant’s business, do not adequately distinguish a disputed domain name from complainant’s mark under Policy ¶ 4(a)(i).). Therefore, the Panel agrees that Respondent has not included elements in the domain names that would provide distinction from 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), 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 contends that Respondent has no rights or legitimate interests in <secureamazoncheckout.com> and <amazonscheckouts.com>. Where a response is lacking, relevant information includes the WHOIS and any other assertions by a complainant regarding the nature of its relationship with a respondent. 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). The WHOIS identifies
“zheng bing zheng bing / zheng bing / zhang jun” as registrant. Complainant argues that Respondent is not affiliated with Complainant, nor does it hold any license to use any of Complainant’s marks. Accordingly, the Panel agrees that Respondent is not commonly known by <secureamazoncheckout.com> and <amazonscheckouts.com> under Policy ¶ 4(c)(ii).
Further, Complainant argues that Respondent does not use <secureamazoncheckout.com> and <amazonscheckouts.com> in connection with any bona fide offering of goods or services or any legitimate noncommercial or fair use because they redirect Internet users to a website that mimics Complainant’s official website, in an attempt to obtain personal or financial information from Internet users. Where a respondent incorporates a complainant’s marks in its resolving website, especially in furtherance of a fraudulent scheme, no rights or legitimate interests can be found. See Vivendi Universal Games v. Ballard, FA 146621 (Forum Mar. 13, 2002) (stating that where the respondent copied the complainant’s website in order to steal account information from the complainant’s customers, that the respondent’s “exploitation of the goodwill and consumer trust surrounding the BLIZZARD NORTH mark to aid in its illegal activities is prima facie evidence of a lack of rights and legitimate interests in the disputed domain name”). The Panel agrees that Respondent’s use clearly evinces incorporation of Complainant’s marks in an attempt to induce Internet users to provide personal and financial information and therefore no rights or legitimate interests have been represented.
Complainant argues that Respondent registered and used <secureamazoncheckout.com> and <amazonscheckouts.com> in bad faith. Says Complainant, Respondent has used the <secureamazoncheckout.com> to redirect Internet users to the fraudulent website, which uses <amazonscheckouts.com> for the email address “contact@amazonscheckouts.com” spawned from the fraudulent website when Internet users click “Contact Us By Email.” Policy ¶ 4(b)(iv) has been found in similar situations. See Zoetis Inc. and Zoetis Services LLC v. VistaPrint Technologies Ltd, FA1506001623601 (Forum July 14, 2015) (“Respondent’s attempt to use the <zoietis.com> domain name to phish for personal information in fraudulent emails also constitutes bad faith pursuant to Policy ¶ 4(a)(iii).”); see also 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). Here, Complainant argues that Respondent’s use in its totality constitutes fraudulent behavior consistent with a likelihood of confusion for commercial gain as per Policy ¶ 4(b)(iv). The Panel agrees with Complainant relying on the available evidence Complainant submitted.
Furthermore, Complainant argues that while Respondent redirects Internet users to a website that is nearly identical to Complainant’s—in a fraudulent scheme to acquire personal and financial information of Internet users—it is clear that Respondent had actual knowledge of Complainant and its rights which demonstrates Respondent’s bad faith under Policy ¶ 4(a)(iii). A respondent’s use of a disputed domain name may speak to its actual knowledge of a complainant and its rights because such competitiveness or incorporation of a complainant’s likenesses or marks could not have been accomplished without such knowledge. See Google Inc. v. Ahmed Humood, FA1411001591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to an in competition with Complainant.”). Here, while Respondent is argued to have mimicked Complainant’s online offerings in an attempt to engage in a fraudulent scheme, the Panel infers from the manner of use of the disputed domain names by Respondent and from the notoriety of the Complainant's mark that Respondent had actual knowledge and therefore registered and used the domain names in bad faith under a nonexclusive consideration of 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 <secureamazoncheckout.com> and <amazonscheckouts.com> domain names be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: December 5, 2016
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