National Arbitration Forum

 

DECISION

 

Amazon.com, Inc. v. Whois Privacy inc

Claim Number: FA0508000536281

 

PARTIES

Complainant is Amazon.com, Inc. (“Complainant”), represented by Kevin M. Hayes, of Klarquist Sparkman, LLP, One World Trade Center, Suite 1600, 121 SW Salmon Street, Portland, OR 97204.  Respondent is Whois Privacy inc (“Respondent”), 323 W. 77 st., New York, NY 10025.

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <amazln.com>, registered with Intercosmos Media Group, Inc. d/b/a Directnic.com.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge has no known conflict in serving as Panelists in this proceeding.

 

Professor Darryl C. Wilson, Chair; Edward C. Chiasson, Esq.; and Steven L. Schwartz as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on August 9, 2005; the National Arbitration Forum received a hard copy of the Complaint on August 12, 2005.

 

On August 10, 2005, Intercosmos Media Group, Inc. d/b/a Directnic.com confirmed by e-mail to the National Arbitration Forum that the domain name <amazln.com> is registered with Intercosmos Media Group, Inc. d/b/a Directnic.com and that the Respondent is the current registrant of the name.  Intercosmos Media Group, Inc. d/b/a Directnic.com has verified that Respondent is bound by the Intercosmos Media Group, Inc. d/b/a Directnic.com registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

 

On August 12, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of September 1, 2005 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@amazln.com by e-mail.

 

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On September 12, 2005, pursuant to Complainant’s request to have the dispute decided by a three-member Panel, the National Arbitration Forum appointed Professor Darryl C. Wilson, Chair; Edward C. Chiasson, Esq.; and Steven L. Schwartz as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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."  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES’ CONTENTIONS

A.     Complainant

 

Complainant asserts that it is the owner of an internationally famous trademark known as Amazon.com®, as well as a famous mark, Amazon.  Complainant states that it has Amazon trademark registrations in over forty nations, in addition to numerous registrations in the United States.  Complainant asserts that it is one of the world’s best Internet retailers, selling a variety of goods and services from its Amazon.com® website.  Complainant also alleges that Respondent registered a confusingly similar typo of Complainant’s Amazon.com® trademark without authorization, in a bad faith attempt to benefit from Complainant’s name and reputation.  Complainant further asserts that Respondent has no rights or legitimate interests in the disputed domain name since the website to which the domain name resolves indicates no connection with a bona fide offering of goods or services.  Complainant asserts that Respondent’s bad faith is illustrated by Respondent’s engagement in typosquatting and an intent to create a likelihood of confusion with Complainant’s mark.

 

B.     Respondent

 

The Respondent did not file an answer.

 

FINDINGS

Complainant, Amazon.com, Inc., is well-known as an Internet retailer throughout the world.  Complainant is the owner of numerous domestic and international trademark registrations for Amazon.Com and Amazon, in various classes covering many goods and services.  Complainant has used the Amazon.com mark in commerce since at least as early as 1995 as evidenced by U.S. Federal Registration No. 2,078,496 dated July 15, 1997, issued for computerized on-line ordering services featuring the wholesale and retail distribution of books.  Complainant has sold several billion dollars worth of goods to customers in more than 220 countries and has spent over $240 million dollars on advertising its Amazon trademark since 1996.  Complainant has, through various means, actively policed its marks to prohibit its unauthorized use, including the successful filing of a significant number of UDRP proceedings against cybersquatters worldwide engaged in the misuse of its mark, AMAZON.COM.

 

Respondent is listed as Whois Privacy, Inc. at an address located in New York, NY.  Respondent registered the disputed domain name, <amazln.com>, with Intercosmos Media Group, Inc. d/b/a Directnic.com whose address is located in New Orleans, LA.  Respondent’s domain name, <amazln.com>, is a variant of Complainant’s registered trademarks amazon.com and Amazon, as it simply substitutes the letter “l” for the letter “o.”

 

DISCUSSION

Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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.”

 

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(e), 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 (Nat. Arb. 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.”).

 

Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2)    the 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.

 

 

Identical and/or Confusingly Similar

 

The Panel finds that Complainant has established rights in the Amazon.com mark through its numerous registrations both domestically and abroad.  Beginning with its initial United States federal registration (Reg. No. 2,078,496) and the first use noted thereon, Complainant has continuously used its mark for a variety of goods and services.  See Vivendi Universal Games v. XBNet Ventures, Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant’s federal trademark registrations establish Complainant’s rights in the Blizzard mark.”).

 

The Panel also finds that Respondent’s domain name, <amazln.com>, is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).  The difference between the disputed domain and Complainant’s mark, Amazon.com, is only one letter, located in close proximity to the proper letter on the standard QWERTY keyboard, and reflects a common typographical error that might befall Internet users seeking Complainant’s website.  See Neiman Marcus Group, Inc. v. Party Night, Inc., FA 114546 (Nat. Arb. Forum July 23, 2002) (finding that the <neimanmacus.com> domain name was a misspelling of the complainant’s Neiman Marcus mark and was a classic example of typosquatting, which was evidence that the domain name was confusingly similar to the mark).

 

Rights or Legitimate Interests

 

The Panel finds, pursuant to Policy ¶ 4(a)(ii), that Respondent does not have any rights or legitimate interests in the disputed domain name.  Respondent’s failure to answer the Complaint allows the Panel to accept all reasonable allegations and assertions set forth by Complainant as true.  See Bayerische Motoren Werke AG v. Bavarian AG, FA 110830 (Nat. Arb. Forum June 17, 2002) (finding that in the absence of a response the Panel is free to make inferences from the very failure to do so and assign greater weight to circumstances than it might otherwise do); see also Geocities v. Geocities.Com, D2000-0326 (WIPO June 19, 2000) (finding that the respondent has no rights or legitimate interests in the domain name because the respondent never submitted a response or provided the Panel with evidence to suggest otherwise).

 

Respondent is using the <amazln.com> domain name to operate a website that features links to various commercial websites, including some operated by Complainant’s competitors.  The Panel finds that Respondent’s use is not in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i).  See Disney Enters., Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that the respondent’s diversionary use of the complainant’s mark to attract Internet users to its own website, which contained a series of hyperlinks to unrelated websites, was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names).

 

Complainant has not licensed Respondent’s use of <amazln.com> and asserts that at the time of the Complaint, Respondent had owned the disputed domain name for less than six months.  Respondent does not appear to be commonly known by the disputed domain name, as Respondent’s whois record does not indicate Respondent is known as <amazln.com>.  This is further support for the Panel’s determination that Respondent’s rights or legitimate interests in the disputed domain name are lacking.  See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark).

 

Registration and Use in Bad Faith

 

The Panel finds, pursuant to ¶ 4(a)(iii), that Respondent’s registration and use of <amazln.com> was in bad faith.  Respondent registered the disputed domain name with actual or constructive knowledge of Complainant’s rights in the Amazon.com mark.  Complainant’s mark is a well-known mark, having a degree of national and international fame and was duly registered with the USPTO.  See Orange Glo Int’l v. Blume, FA 118313 (Nat. Arb. Forum Oct. 4, 2002) (Complainant’s OXICLEAN mark is listed on the Principal Register of the USPTO, a status that confers constructive notice on those seeking to register or use the mark or any confusingly similar variation thereof.”); see also Ty Inc. v. Parvin, D2000-0688 (WIPO Nov. 9, 2000) (finding that the respondent’s registration and use of an identical and/or confusingly similar domain name was in bad faith where the complainant’s BEANIE BABIES mark was famous and the respondent should have been aware of it).

 

Furthermore, Respondent’s domain name is a typosquatted version of Complainant’s registered mark.  Typosquatting is evidence of bad faith pursuant to Policy ¶ 4(a)(iii).  See Dermalogica, Inc.v. Domains to Develop, FA 175201 (finding that <dermatalogica.com> domain name was a “simple misspelling of the complainant’s DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy ¶4(a)(iii).

 


DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <amazln.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

 

Professor Darryl C. Wilson, Chair

Edward C. Chiasson, Esq.; and

Steven L. Schwartz as Panelist
Dated: September 26, 2005

 

 

 

 

 

 

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