Amazon.com, Inc. v. DomainSource.com, Inc.
Claim Number: FA0606000741767
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, USA. Respondent is DomainSource.com, Inc. (“Respondent”), PO Box 720520, Redding, CA 96099-7520.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <amazoon.com> and <amqzon.com>, registered with Network Solutions, Inc.
PANEL
The undersigned certify that they have acted independently and
impartially and to the best of their knowledge have no known conflict in
serving as Panelists in this proceeding.
Hon. Paul A. Dorf, (Ret.), Edward C. Chiasson Q.C., and Joel Grossman,
Chair, as Panelists.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on June 28, 2006; the National Arbitration Forum received a hard
copy of the Complaint on July 3, 2006.
On July 3, 2006, Network Solutions, Inc. confirmed by e-mail to the
National Arbitration Forum that the <amazoon.com> and <amqzon.com> domain names are registered with Network
Solutions, Inc. and that the Respondent is the current registrant of the
names. Network Solutions, Inc. has
verified that Respondent is bound by the Network Solutions, Inc. 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 July 5, 2006, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting a deadline
of July 27, 2006 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@amazoon.com and postmaster@amqzon.com by
e-mail.
No Response was received from Respondent.
On August 3, 2006 pursuant to Complainant’s
request to have the dispute decided by a three-member Panel, the National
Arbitration Forum appointed Hon. Paul A. Dorf,
(Ret.), Edward C. Chiasson Q.C., and Joel Grossman, Chair, as Panelists.
RELIEF SOUGHT
Complainant requests that the domain names be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant contends first that the domain names “amazoon.com” and
“amqzon.com” are confusingly similar to Complainant’s trademarked and very
famous “amazon.com” mark. Complainant notes that it has been using its mark since 1996, and that it
has tens of millions of customers in over 220 countries. Complainant asserts
that each of Respondent’s two domain
names are extremely close in spelling to its mark, and that the two domain
names are examples of what has been called “typo-squatting,” that is, luring
visitors who by accident reach Respondent’s sites, though they were trying to
reach Complainant’s site.
Secondly, Complainant asserts that Respondent has no rights or
legitimate interests in its two domain names. Respondents is not commonly known
by either name, and does no business by either name. Rather, the only visitors
who reach Respondent’s site are visitors who were trying to reach Complainant’s
site, but made a typographical error and either added an extra “o” to
amazon.com or by accident hit the “q” key instead of the neighboring “a” key in
the middle of the word “Amazon.”
Moreover, each of Respondent’s websites resolve to “parking” pages, that
is pages with no content except links to other websites, including those of
Complainant’s competitors.
Finally, Complainant asserts that each of the disputed domain names was
registered and is being used in bad faith. Complainant cites another panel
decision for the proposition that “typosquatting,” which is defined as the
“…intentional misspelling of words with intent to intercept and siphon off
traffic from its intended destination, by preying on Internauts who make common
typing errors” is “…inherently
parasitic and of itself evidence of bad faith.” Nat’l Ass’n of Prof’l Baseball Leagues v. Zuccarini D2002-1011 (WIPO Jan. 21, 2003). As further
evidence of bad faith, Complainant points out that the Panel may infer that
Respondent is making a profit from its active attempt to profit from visitors’
typos, since it is probably being rewarded by the sites to which these visitors
are being referred. Complainant also notes that that Respondent is a serial cybersquatter
in that it has already been adjudicated to have acted in bad faith in other
cases.
B. Respondent
No Response was received from Respondent.
FINDINGS
The Panel finds:
(a) that the domain names “amazoon.com” and
“amqzon.com” are both confusingly similar with Complainant’s well-known mark.;
(b) that Respondent has no rights or legitimate interests in the domain names; and
(c) that the domain names were 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.”
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.
There is little doubt that the addition of,
or replacement of one letter in the word “Amazon” inherently results in new
names which are confusingly similar to the mark. As noted by Complainant,
Respondent here is clearly engaged in typosquatting, intending to benefit from
inadvertent errors by visitors attempting to visit Complainant’s site. See, e.g. Campmor, Inc. v. Momm Smed Ia,
FA 154530 (Nat. Arb. Forum June 10, 2003), in which the respondent added an “o”
to the mark Campmor and changed it to Campmoor. In that case the panel stated:
“[the disputed] domain name is confusingly similar to Complainant’s mark
because the disputed domain name incorporates the entire mark and simply adds
an ‘o’ to the mark. The addition of the letter ‘o’ does not significantly
differentiate the domain name from the mark for purposes of [the] Policy.” See
also Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) in which the respondent changed
the spelling of the mark Belkin to Belken. The panel there found confusing
similarity, as we do in this case.
Since Complainant has made a prima facie case
in support of its allegations, the burden shifts to Respondent to show that it
has rights or legitimate interests in the names. See Do the Hustle, LLC v.
Tropic Web, D2000-0624 (WIPO Aug. 21 2000). Respondent has chosen not to
submit a response, so it clearly has not met its burden. There is no evidence
that Respondent ever was in any manner known by either disputed name, or that
it does business by either name. See Ian Schrager Hotels, LLC v. Taylor,
FA 173369 (Nat. Arb. Forum Sept. 25, 2003). Moreover, Respondent’s use of the
disputed names is neither a bona fide offering of goods or services, nor is it
a legitimate non-commercial use of the names. See Golden Bear Int’l, Inc. v.
Kangdeock-ho FA 190644 (Nat. Arb. Forum Oct. 17, 2003). There has been no
showing that Respondent has rights or legitimate interests in the names.
Rather, as in other typosquatting cases, Respondent is merely trying to feed
off the typing mistakes of visitors attempting to visit Complainant’s site.
As noted earlier in summarizing Complainant’s
case, other panels have noted that typosquatting is, without more, evidence of
bad faith. See Nat’l Association of Professional Baseball Leagues, supra. Respondent’s two domain names were obviously
intended to divert visitors from Complainant’s site to its own sites, with the
further intention of disrupting Complainant’s business by redirecting the typographically-challenged visitors
attempting to visit Complainant’s sites to sites of Complainant’s competitors.
Without question this disruptive behavior constitutes evidence of bad faith
under the Policy. See Dell Inc. v. Superpennysaver, FA 676443 (Nat. Arb.
Forum May 24, 2006.) The Panel concludes that Respondent’s attempts to divert
customers seeking the services of Complainant’s site prove that the marks were
registered in bad faith, and are being used in bad faith.
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 <amazoon.com> and <amqzon.com> domain name be TRANSFERRED from
Respondent to Complainant.
Joel Grossman , Chair and Hon. Paul A. Dorf
(Ret.), Edward C. Chiasson Q.C., Panelists
Dated: August 17, 2006
Click Here to return
to the main Domain Decisions Page.
Click
Here to return to our Home Page
National
Arbitration Forum