Amazon Technologies, Inc. v. jaskima smith
Claim Number: FA1709001750160
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by Craig A. Beaker of Perkins Coie, District of Columbia, USA. Respondent is jaskima smith (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amazonprimenumber.us>, registered with GoDaddy.com, 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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 21, 2017; the Forum received payment on September 21, 2017.
On September 22, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <amazonprimenumber.us> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. 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 September 25, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 16, 2017 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@amazonprimenumber.us. Also on September 25, 2017, 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 October 17, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD 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 registered the AMAZON PRIME mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 3,419,886, registered Apr. 29, 2008). Respondent’s <amazonprimenumber.us> domain name is confusingly similar to Complainant’s mark as it wholly incorporates Complainant’s AMAZON PRIME mark and merely adds the generic term “number” and the “.us” country code top-level domain (“ccTLD”).
Respondent has no rights or legitimate interests in the <amazonprimenumber.us> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent attempts to pass itself off as Complainant to phish information from Internet users.
Respondent registered and uses the <amazonprimenumber.us> domain name in bad faith. Respondent uses the Disputed Domain to redirect Internet users to a website that mimics Complainant’s website in order to confuse users into believing that Respondent is affiliated or associated with Complainant. Respondent had actual knowledge of Complainant’s rights in the AMAZON PRIME mark prior to registration of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <amazonprimenumber.us> domain name.
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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 asserts rights in the AMAZON PRIME mark based upon registration with the USPTO (e.g. Reg. No. 3,419,886, registered Apr. 29, 2008). Registration of a mark with a trademark authority such as the USPTO sufficiently establishes a registrant’s rights in a mark. 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 finds Complainant has established rights in the mark for the purposes of Policy ¶ 4(a)(i).
Next, Complainant contends Respondent’s <amazonprimenumber.us> domain name is confusingly similar to Complainant’s mark as it wholly incorporates Complainant’s AMAZON PRIME mark and merely adds the generic term “number” and the “.us” ccTLD. The addition of a generic term and a ccTLD are irrelevant for a Policy ¶ 4(a)(i) analysis and insufficient to differentiate between a mark and a disputed domain name consisting of said mark. See Morgan Stanley v. Eugene Sykorsky / private person, FA 1651901 (Forum Jan. 19, 2016) (concluding that the addition of a generic term and top level domain to a trademark is inconsequential under a Policy ¶ 4(a)(i) analysis.); see also CDW Computer Ctrs., Inc. v. The Joy Co., FA 114463 (Forum July 25, 2002) (finding that the addition of the ccTLD “.us” is inconsequential and does not defeat a claim of confusing similarity). Here, Respondent’s additions to Complainant’s AMAZON PRIME mark are insufficient to differentiate the disputed domain name from the mark. Therefore, the Panel finds Respondent’s <amazonprimenumber.us> to be confusingly similar to Complainant’s AMAZON PRIME mark per Policy ¶ 4(a)(i).
Complainant has proved this element.
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 Respondent does not have rights in a mark identical to the disputed domain name per Policy ¶ 4(c)(i). There exists a lack of evidence in the record of Respondent’s rights in a mark identical to the disputed domain, supporting a finding that Respondent has not satisfied Policy ¶ 4(c)(i). See BONA AB v. BN, FA1505001618833 (Forum June 19, 2015) (“The Panel notes that Respondent has failed to submit evidence to suggest ownership. Therefore, the Panel finds that Respondent does not own any marks identical to the <bona.us> domain name under Policy ¶ 4(c)(i).”). The Panel finds that Respondent does not own any marks identical to the <amazonprimenumber.us> domain name per Policy ¶ 4(c)(i).
Complainant contends that Respondent has no rights or legitimate interests in the <amazonprimenumber.us> domain name. 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 “jaskima smith” as the registrant. Complainant asserts that no evidence exists to show that Respondent has ever been legitimately known by the AMAZON PRIME mark. Panels may use these assertions as evidence of lacking rights or legitimate interests. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). Complainant alleges that Respondent has never been legitimately affiliated with Complainant, has never been known by the disputed domain name prior to its registration, and Complainant has not given Respondent permission to use the disputed domain name. Accordingly, the Panel agrees that Respondent is not commonly known by the <amazonprimenumber.us> domain name under Policy ¶ 4(c)(iii).
Next, Complainant argues that Respondent does not use the disputed domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use because Respondent engages in a phishing scheme to obtain information from users. Phishing schemes can evince a failure to provide a bona fide offering of goods or services or legitimate noncommercial or fair use. See Google Inc. v. Pritam Singh / Pandaje Technical Services Pvt Ltd., FA 1660771 (Forum Mar. 17, 2016) (agreeing that respondent has not shown any bona fide offering of goods or services or any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(ii) or (iv) as the respondent used the complainant’s mark and logo on a resolving website containing offers for technical support and password recovery services, and soliciting Internet users’ personal information). Here, Complainant asserts Respondent uses Complainant’s marks in an attempt to pass itself off as Complainant and gain personal information from Internet users thinking they are dealing with Complainant. The Panel finds that Respondent has failed to provide a bona fide offering of goods or services under Policy ¶ 4(c)(ii), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iv).
Complainant has proved this element.
Complainant claims that Respondent registered and uses the <amazonprimenumber.us> domain in bad faith because it attempts to pass itself off as Complainant. Passing off can evince bad faith registration and use. See Target Brands, Inc. v. JK Internet Servs., FA 349108 (Forum Dec. 14, 2004) (finding bad faith because the respondent not only registered Complainant’s famous TARGET mark, but “reproduced . . . Complainant’s TARGET mark . . . [and] added Complainant’s distinctive red bull’s eye [at the domain name] . . . to a point of being indistinguishable from the original.”). Here, Complainant asserts Respondent uses Complainant’s AMAZON PRIME marks in the domain name and on the resolving website in an attempt to pass itself off as Complainant and gain personal information from Internet users that mistakenly access the website. The Panel agrees with Complainant and concludes Respondent registered and uses the disputed domain in bad faith pursuant to Policy ¶ 4(b)(iv).
Complainant contends that Respondent must have had actual knowledge of the AMAZON PRIME mark due to its use in the domain name and on the resolving website in a phishing scheme. The Panel agrees with Complainant that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name and finds that actual knowledge does adequately evince bad faith under Policy ¶ 4(a)(iii). See 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).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <amazonprimenumber.us> domain name be TRANSFERRED from Respondent to Complainant.
__________________________________________________________________
Hon. Karl V. Fink (Ret.) Panelist
Dated: October 26, 2017
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page