Amazon Technologies, Inc. v. Not disclosed Not disclosed / IceNetworks Ltd.
Claim Number: FA2007001905671
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Not disclosed Not disclosed / IceNetworks Ltd. (“Respondent”), Iceland.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amazonperformancepolicy.com> (‘the Domain Name’), registered with Internet Domain Service BS Corp.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 23, 2020; the Forum received payment on July 23, 2020.
On July 27, 2020, Internet Domain Service BS Corp confirmed by e-mail to the Forum that the <amazonperformancepolicy.com> domain name is registered with Internet Domain Service BS Corp and that Respondent is the current registrant of the name. Internet Domain Service BS Corp has verified that Respondent is bound by the Internet Domain Service BS Corp 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 July 28, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 17, 2020 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@amazonperformancepolicy.com. Also on July 28, 2020, 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 19, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of registered trademarks for AMAZON and AMAZON.COM registered, inter alia, in the USA for online retail services with first use recorded as 1995. The marks are well known.
The Domain Name registered in 2020 is confusingly similar to the Complainant’s marks.
Adding generic terms like ‘performance’ and ‘policy’ and/or a gTLD does not prevent confusing similarity.
The Respondent does not have rights or a legitimate interest in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The Domain Name does not resolve to an active web site but has been used in e mails to impersonate the Complainant for fraudulent purposes. This is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is registration and use in bad faith disrupting the Complainant’s business in a confusing and fraudulent manner.
The Respondent has been the subject of a number of adverse decisions under the Policy showing a pattern of cybersquatting activity.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of registered trademarks for AMAZON and AMAZON.COM registered, inter alia, in the USA for online retail services with first use recorded as 1995. The marks are well known.
The Domain Name registered in 2020 has been used in a fraudulent e mail scheme.
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”).
Identical or Confusingly Similar
The Domain Name consists of the Complainant’s AMAZON.COM mark (which is registered in, inter alia, the USA for on line retail services since 1995), and the generic terms ‘performance’ and ‘policy’.
Previous panels have found confusing similarity when a respondent merely adds generic terms to the Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks). Adding the generic terms ‘performance’ and ‘policy’ does not prevent confusing similarity between the Domain Name and the Complainant’s AMAZON.COM mark
Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s AMAZON.COM registered mark.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorized the use of its marks. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The Domain Name has been used in a fraudulent e mail scheme. This is deceptive and confusing. As such it cannot amount to the bona fide offering of goods and services or a noncommercial legitimate or fair use. See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum November 30, 2016) (“Respondent uses the at-issue domain name to pose as Complainant’s CEO by means of email addresses at the confusingly similar domain name in an attempt to determine Complainant’s ability to process a transfer. Using the domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)”).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Impersonating a complainant by use of a complainant’s mark in a fraudulent e mail scam is disruptive and evinces bad faith registration and use. See Microsoft Corporation v. Terrence Green/ Whois Agent/Whois Privacy Protection Service, Inc., FA 1661030 (Forum April 4, 2016) (finding that respondent’s use of the disputed domain name to send fraudulent e mails constituted bad faith registration and use pursuant to Policy 4(b)(iii).).
Further the Respondent has been the subject of a number of adverse decisions under the Policy showing a pattern of activity of registering the trademarks of others in domain names.
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under ¶¶ 4(b)(ii) and (iii). There is no need to consider any additional grounds of bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amazonperformancepolicy.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: August 19, 2020
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