Amazon Technologies, Inc. v. SUPPORT SACHIKO
Claim Number: FA1609001692084
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is SUPPORT SACHIKO (“Respondent”), Delaware, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amazonvehicle.com>, registered with eNom, Inc.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 1, 2016; the Forum received payment on September 1, 2016.
On September 2, 2016, eNom, Inc. confirmed by e-mail to the Forum that the <amazonvehicle.com> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. has verified that Respondent is bound by the eNom, Inc. 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 6, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 26, 2016 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@amazonvehicle.com. Also on September 6, 2016, 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 September 28, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (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 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
Complainant registered the AMAZON.COM mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,559,936, registered Apr. 9, 2002), and has rights in this mark that it uses for its extremely popular online store. Respondent’s <amazonvehicle.com> domain name is confusingly similar under Policy ¶ 4(a)(i), because it merely inserts the generic term “vehicle” into the wholly incorporated AMAZON.COM mark.
Respondent has no rights or legitimate interests in the disputed domain name. Complainant has not granted Respondent permission to use its AMAZON.COM mark, and the Respondent is not commonly known as <amazonvehicle.com>. Respondent is currently not making an active use of the domain name and was previously attempting to pass itself off as one of Complainant’s affiliates, Amazon Payments. Such use cannot constitute a bona fide offering of goods and services or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) or (iii).
Respondent registered and is using the disputed domain name in bad faith. Respondent had actual notice of Complainant’s rights in the AMAZON.COM mark due to its fame, and Respondent’s prior attempts to pass itself off as Amazon Payments is additional evidence of actual notice. In 2012, Respondent was attempting to pass itself off as Complainant in an attempt to attract Internet users to its website for commercial gain. Further, the failure to make an active use of a disputed domain name has been held to be in bad faith by itself under Policy ¶ 4(a)(iii).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Amazon Technologies, Inc., is one of the world’s largest online retailers, offering products and services to more than 100 countries around the world. Complainant has rights in its famous AMAZON.COM mark through registration with the USPTO (e.g., Reg. No. 2,559,936, registered Apr. 9, 2002). Respondent’s <amazonvehicle.com> domain name is confusingly similar under Policy ¶ 4(a)(i).
Respondent, SUPPORT SACHIKO, registered the <amazonvehicle.com> domain name on March 13, 2012.
Respondent has no rights or legitimate interests in the disputed domain name. Complainant has not authorized Respondent to use its AMAZON.COM mark. Respondent is not commonly known as <amazonvehicle.com>. The domain name has been inactive since October 2012. From registration on March 13, 2012, to October, 2012, Respondent used the domain name to to conduct a scam in which Respondent impersonated Complainant’s Amazon Payments service and offered fake payment/escrow services to vehicle purchasers.
Respondent’s use of the domain name does not constitute a bona fide offering of goods and services or a legitimate noncommercial or fair use of the disputed domain name.
Respondent registered and is using the disputed domain name in bad faith. Respondent had actual notice of Complainant’s rights in the AMAZON.COM mark. In 2012, Respondent was attempting to pass itself off as Complainant in an attempt to attract Internet users to its website for commercial gain. Then, Respondent failed to make an active use of the 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 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 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 has rights in its famous AMAZON.COM mark under Policy ¶ 4(a)(i) based on registration with the USPTO. See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . .”).
Respondent’s <amazonvehicle.com> domain name is confusingly similar to its AMAZON.COM mark under Policy ¶ 4(a)(i). Respondent has merely added the generic term “vehicle” within the fully incorporated AMAZON.COM mark.
Respondent has no rights or legitimate interests in the <amazonvehicle.com> domain name. Complainant has not authorized Respondent to use its AMAZON.COM mark. Respondent is not commonly known by the domain name. The Panel WHOIS information for the domain name lists “SUPPORT SACHIKO” as the registrant. See Google Inc. v. Domain Admin / Whois Privacy Corp., FA 1605239 (Forum Mar. 22, 2015) (“WHOIS information for the at-issue domain name lists ‘Domain Admin / Whois Privacy Corp.’ as the domain name’s registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the <google-status.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii).”).
Respondent is not using the <amazonvehicle.com> domain name to make a bona fide offering of goods and services under Policy ¶ 4(c)(i), or using it to make a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). Respondent is currently not making an active use of the disputed domain name. Panels have found that a respondent must be making demonstrable preparations to use a domain name to have rights and legitimate interests in it. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”).
Prior to October 2012, Respondent was using the disputed domain name to pass itself as Complainant’s affiliate, Amazon Payments. A respondent’s attempt to pass itself off as a complainant has been held by panels not to confer any rights or legitimate interests. See Dream Horse Classifieds v. Mosley, FA 381256 (Forum Feb. 8, 2005) (finding the respondent’s attempt to pass itself off as the complainant by implementing a color scheme identical to the complainant’s was evidence that respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii)).
Respondent has registered and is using the <amazonvehicle.com> domain name in bad faith. Respondent is attempting to pass itself off as Complainant in a bad faith attempt to attract Internet users for commercial gain under Policy ¶ 4(b)(iv). Respondent’s mimicking of its Amazon Payments services, in conjunction with the confusingly similar domain name, creates a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the disputed domain name. See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use).
Respondent had actual notice of Complainant’s rights in the AMAZON.COM mark when it registered the <amazonvehicle.com> domain name. Therefore, Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii). See Google Inc. v. Ahmed Humood, FA 1591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to an in competition with Complainant.”);
Respondent’s failure to make active use of the <amazonvehicle.com> domain name for four years is shows bad faith registration and use under Policy ¶ 4(a)(iii). See Marsh Supermarkets Company, LLC, formerly known as Marsh Supermarkets, Inc. v. Choi Sungyeon, FA 1532854 (Forum Feb. 25, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <marshsupermarkets.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii) because Respondent has failed to make an active use of 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 <amazonvehicle.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: October 15, 2016
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