Amazon.com, Inc. v. Unasi Inc.
Claim Number: FA0508000542437
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 Unasi Inc.
(“Respondent”), Galerias Alvear 3, Zona 5, Panama 5235, Panama.
REGISTRAR AND DISPUTED DOMAIN NAMES
The
domain names at issue are <amazozn.com>, <amatzon.com>, <amzzon.com>, <amazondownloads.com>, <amazoncameras.com>, <amazonboks.com>, and <azamon.com>, registered with iHoldings.com, Inc. d/b/a DotRegistrar.com.
PANEL
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.
Richard B. Wickersham , Judge (Ret.) and Edward C. Chiasson Q.C. as
Panelists, and David S. Safran, as Panel Chair.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum electronically on August
17, 2005; the National Arbitration Forum received a hard copy of the Complaint
on August 19, 2005.
On
August 22, 2005, iHoldings.com, Inc. d/b/a DotRegistrar.com confirmed by e-mail
to the National Arbitration Forum that the domain names <amazozn.com>, <amatzon.com>, <amzzon.com>, <amazondownloads.com>, <amazoncameras.com>, <amazonboks.com>, and <azamon.com> are registered with iHoldings.com, Inc. d/b/a
DotRegistrar.com and that the Respondent is the current registrant of the
name. iHoldings.com, Inc. d/b/a
DotRegistrar.com has verified that Respondent is bound by the iHoldings.com,
Inc. d/b/a DotRegistrar.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 24, 2005, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting a deadline of September
13, 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@amazozn.com, postmaster@amatzon.com,
postmaster@amzzon.com, postmaster@amazondownloads.com,
postmaster@amazoncameras.com, postmaster@amazonboks.com, and
postmaster@azamon.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 28, 2005, pursuant to Complainant’s request
to have the dispute decided by a Three-member
Panel, the National Arbitration Forum
appointed Richard B. Wickersham
,
Judge (Ret.) and Edward C. Chiasson as Panelists, and David S. Safran, as Panel Chair.
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 names be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant
It
is Complainant’s contention that Respondent is a recidivist cybersquatter that
has registered multiple domain names comprising typos and misspellings of
Complainant’s internationally famous trademark AMAZON.COM, as well as several
domain names that fully incorporate Complainant mark with the mere addition of
a generic term, and that such was done without authorization, in a bad faith
attempt to benefit from Complainant’s name and reputation. More specifically, Complainant has
registered the AMAZON trademark in over 40 nations, as well as the European
Union and has tens of millions of customers from over 220 countries who have
purchased billions of dollars of goods through Complainant’s amazon.com
website.
Complainant
also contends that all of the disputed domains are either typos or misspellings
of Complainant’s AMAZON marks or fully incorporate Complainant’s marks and
merely add a generic term such as “cameras,” “downloads,” or “boks” (a
misspelling of books). It is further
contended that none of the disputed domains are sufficiently different from
Complainant’s AMAZON marks to dispel consumers’ likely confusion between the
domains names and Complainant’s trademarks.
Still
Further, Complainant contends that Respondent
has not made any use of the disputed domains since each of the disputed domains
(except <amazonboks.com>) redirects to a parking page with no substantive
content or, in the case of <azamon.com>, resolves to a page
displaying a “page cannot be found” message, so that Respondent cannot be said to be making a bona fide offering of goods or
services or a legitimate noncommercial use of those domains.
Also,
given the late creation date of the disputed domains (long after Complainant’s
trademarks had become famous) and Respondent’s registration of multiple
confusingly similar domains, Complainant contends that Respondent is attempting
to ride the coattails of Complainant’s famous name and marks in bad faith, and
in violation of both the Policy and U.S. federal law.
B.
Respondent
Respondent
has defaulted.
FINDINGS
The panel finds that Complainant has
established that the domain names registered by the Respondent are confusingly
similar to trademarks in which the Complainant has rights, that the Respondent
has no rights or legitimate interests in respect of the domain names; and that
the domain names have been registered and are being used in bad faith.
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 factual assertions
pursuant to Rules 5(e), 14(a), and 15(a) and draw such inferences it considers
appropriate pursuant to Rule 14(b). The
Panel is entitled to accept all reasonable assertions of fact and inferences
flowing from the reasonable assertions of fact set forth in the Complaint as
being 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.
It
is unchallenged that Complainant has established rights in the AMAZON.COM mark
through registration of the mark with the United States Patent and Trademark
Office (“USPTO”) (Reg. No. 2,078,496, issued July 15, 1997; Reg. Nos.
2,559,936; 2,789,101; 2,167,345 and others) and in other countries. See Vivendi Universal Games v. XBNetVentures
Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's
federal trademark registrations establish Complainant's rights in the BLIZZARD
mark.”); see also U.S. Office of Pers. Mgmt. v. MS
Tech. Inc., FA 198898 (Nat. Arb. Forum
Dec. 9, 2003) (“[O]nce the USPTO has made a determination that a mark is
registrable, by so issuing a registration, as indeed was the case here, an
ICANN panel is not empowered to nor should it disturb that determination.”).
It is clear that Respondent’s <amazozn.com>, <amatzon.com>, <amzzon.com>, <amazondownloads.com>, <amazoncameras.com>, <amazonboks.com>, and <azamon.com>
domain
names are confusingly similar to Complainant’s AMAZON.COM mark because the domain names add, replace, and
transpose letters, and add common terms to the mark that describe Complainant’s
business.
Thus, the Panel finds that Respondent’s domain names are confusingly
similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Reuters Ltd. v. Global
Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name
which differs by only one letter from a trademark has a greater tendency to be
confusingly similar to the trademark where the trademark is highly
distinctive); see also Victoria’s Secret v. Zuccarini, FA 95762 (Nat.
Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding
letters to words, a respondent does not create a distinct mark but nevertheless
renders the domain name confusingly similar to the complainant’s marks); see
also Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002)
(finding <googel.com> to be confusingly similar to the complainant’s
GOOGLE mark and noting that “[t]he transposition of two letters does not create
a distinct mark capable of overcoming a claim of confusing similarity, as the
result reflects a very probable typographical error”); see also Space
Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding
confusing similarity where the respondent’s domain name combines the
complainant’s mark with a generic term that has an obvious relationship to the
complainant’s business).
Complainant having made a prima
facie case pointing to facts in support of its assertions that the Respondent has no rights or
legitimate interests with respect to the domain names, and the Respondent has failed to come forward with any evidence
rebutting Complainant’s prima
facie case or otherwise
demonstrating any rights or legitimate interests it might have pursuant to
Policy ¶ 4(a)(ii). See Do
The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000)
(holding that, where the complainant has asserted facts that indicate that the
respondent has no rights or legitimate interests with respect to the domain
name, it is incumbent on the respondent to come forward with concrete evidence
rebutting the facts asserted because this information is “uniquely within the
knowledge and control of the respondent”).
Thus,
Respondent’s failure to file a response rebutting the asserted facts, which
indicate that Respondent lacks rights and legitimate interests, allows the
Panel to draw whatever logical conclusions flow from those unrebutted
assertions. See Parfums Christian Dior v. QTR Corp.,
D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the
respondent has failed to invoke any circumstance which could demonstrate any
rights or legitimate interests in the domain name); see also Pavillion Agency, Inc. v. Greenhouse Agency
Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondents’ failure
to respond can be construed as an admission that they have no legitimate
interest in the domain names).
Complainant contends that Respondent is neither commonly known by
the disputed domain names nor authorized to use Complainant’s mark in any
fashion. Thus, the Panel finds that
Respondent has not established rights or legitimate interests in the disputed
domain names pursuant to Policy ¶ 4(c)(ii).
See Tercent
Inc. v. Lee Yi, FA
139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS
information implies that Respondent is ‘commonly known by’ the disputed domain
name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see
also 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).
Complainant
has asserted that Respondent has not used the <amazozn.com>, <amatzon.com>, <amzzon.com>, <amazondownloads.com>, <amazoncameras.com>, <amazonboks.com>, and <azamon.com> domain names
in connection with an active
website. The Panel has found that such
nonuse is not a bona fide offering of goods or services pursuant to
Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy
¶ 4(c)(iii). See Ritz-Carlton Hotel v. Club Car Executive,
D2000-0611 (WIPO Sept. 18, 2000) (finding that prior to any notice of the
dispute, the respondent had not used the domain names in connection with any
type of bona fide offering of goods and services); see also Melbourne IT Ltd. v. Stafford,
D2000-1167 (WIPO Oct. 16, 2000) (finding no rights or legitimate interests in
the domain name where there is no proof that a respondent made preparations to
use the domain name in connection with a bona fide offering of goods and
services before notice of the domain name dispute, the domain name did not
resolve to a website, and the respondent is not commonly known by the domain
name); see also Ziegenfelder Co.
v. VMH Enter., Inc., D2000-0039 (WIPO Mar. 14, 2000) (finding that failure
to provide a product or service or develop the site demonstrates that the
respondents have not established any rights or legitimate interests in the
domain name).
Additionally,
the Panel has interpreted the fact that Respondent’s <amazozn.com>, <amatzon.com>, <amzzon.com>
domain names are typosquatted variations of Complainant’s mark as evidence
that Respondent does not have rights or legitimate interests in the disputed
domain names pursuant to Policy ¶ 4(a)(ii).
See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that
the respondent lacked rights and legitimate
interests in the disputed domain names because it “engaged in the
practice of typosquatting by taking advantage of Internet users who attempt to
access Complainant's <indymac.com> website but mistakenly misspell
Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”); see
also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14,
2003) (finding that the <ltdcommadities.com>,
<ltdcommmodities.com>, and <ltdcommodaties.com> domain
names were intentional misspellings of Complainant's LTD COMMODITIES mark
and this “‘typosquatting’ is evidence that Respondent lacks rights or
legitimate interests in the disputed domain names”).
Registration
and Use in Bad Faith
The Panel has found that Respondent registered the <amazozn.com>, <amatzon.com>, <amzzon.com>, <amazondownloads.com>, <amazoncameras.com>, <amazonboks.com>, and <azamon.com>
domain
names with
actual or constructive knowledge of Complainant’s rights in the AMAZON.COM mark
due to Complainant’s registration of the mark with the USPTO. Moreover, the Panel has inferred that
Respondent had actual knowledge of the mark due to the immense international
fame attached to the mark. Thus, the
Panel has concluded that Respondent’s registration of domain names that are confusingly similar to Complainant’s mark,
despite actual or constructive knowledge of the mark, is evidence of bad faith
registration and use pursuant to Policy ¶ 4(a)(iii). See Digi
Int’l v. DDI Sys., FA
124506 (Nat. Arb. Forum Oct. 24, 2002) (“[T]here is a legal presumption of bad
faith, when Respondent reasonably should have been aware of Complainant’s
trademarks, actually or constructively.”); see also 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).
The Panel also finds that Respondent has registered the <amazozn.com>, <amatzon.com>, <amzzon.com>, <amazondownloads.com>, <amazoncameras.com>, <amazonboks.com>, and <azamon.com>
domain
names in bad faith because Respondent has made no use of the domain names. See Telstra Corp. v. Nuclear
Marshmallows, D2000-0003
(WIPO Feb. 18, 2000) (finding that “it is possible, in certain circumstances,
for inactivity by the Respondent to amount to the domain name being used in bad
faith”); see also DCI S.A. v. Link
Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the
respondent’s passive holding of the domain name satisfies the requirement of ¶
4(a)(iii) of the Policy); see also
Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov.
28, 2000) (finding that merely holding an infringing domain name without active
use can constitute use in bad faith).
The
Panel also interprets the fact that Respondent’s
<amazozn.com>, <amatzon.com>, <amzzon.com>
domain names are typosquatted variations of Complainant’s mark as evidence
that Respondent registered and used the disputed domain name in bad faith
pursuant to Policy ¶ 4(a)(iii). See Dermalogica, Inc. v. Domains to Develop, FA
175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that
the <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)); see also K.R.
USA, INC. v. SO SO DOMAINS, FA 180624 (Nat. Arb. Forum Sept. 18, 2003) (finding that the respondent’s registration
and use of the <philadelphiaenquirer.com> and
<tallahassedemocrat.com> domain names capitalized on the typographical
error of Internet users seeking the complainant's THE PHILADELPHIA
INQUIRER and TALLAHASSEE DEMOCRAT marks, evincing 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 <amazozn.com>, <amatzon.com>, <amzzon.com>, <amazondownloads.com>, <amazoncameras.com>, <amazonboks.com>, and <azamon.com> domain names be TRANSFERRED from
Respondent to Complainant.
David S. Safran Panel Chair
Dated: October 12, 2005
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