Amazon Technologies, Inc. v. thejeswar reddy
Claim Number: FA1703001721564
Complainant is Amazon Technologies, Inc. ("Complainant"), represented by Patricia Q. Hu of Richard Law Group, Inc., Texas, USA. Respondent is thejeswar reddy ("Respondent"), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amazoncloths.com>, registered with GoDaddy.com, LLC.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 13, 2017; the Forum received payment on March 13, 2017.
On March 14, 2017, GoDaddy.com, LLC confirmed by email to the Forum that the <amazoncloths.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 March 15, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 4, 2017 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@amazoncloths.com. Also on March 15, 2017, the Written Notice of the Complaint, notifying Respondent of the email 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.
Respondent sent email messages to the Forum on March 15, April 7, and April 10, inquiring about the proceeding and then denying that Respondent registered the domain name in bad faith.
Having received no formal response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On April 13, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 a formal response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant and its licensees and predecessors in interest have used the AMAZON mark since 1995 in connection with various products and services, including Amazon.com, the most-viewed shopping website in the world. Complainant's domain names include <amazonclothes.com> and <amazonclothing.com>, which resolve to Complainant's online clothing stores. Complainant asserts that the AMAZON mark has become famous as a result of Complainant's extensive advertising and use, citing surveys that rank it among the most well-known brands globally. The AMAZON mark is registered in jurisdictions around the world, including the United States and India.
The disputed domain name <amazoncloths.com> was registered in December 2016. it resolves to a website that uses a color scheme similar to that used by Complainant, and appears to be a retail store featuring clothing and accessories, purporting to offer well-known brands such as FILA, Reebok, Puma, and Adidas. Complainant states that Respondent has never been legitimately known or referred to as AMAZON or any variation thereof, and is not licensed to use Complainant's AMAZON mark. On these grounds Complainant contends that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent has no rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a formal Response in this proceeding. In its email message of April 10, 2017, Respondent denied having registered the domain name in bad faith.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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.").
The disputed domain name <amazoncloths.com> corresponds to Complainant's AMAZON mark, appending the geographic term "cloths" and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Amazon Technologies, Inc. v. Steve Souders / pa1pa1, FA 1610740 (Forum Apr. 21, 2015) (finding <amazondresses.org> confusingly similar to AMAZON); Ganz v. Schuessler Enterprises, Inc., FA 1230809 (Forum Dec. 10, 2008) (finding <webkinzcloths.com> confusingly similar to WEBKINZ). The Panel finds that the disputed domain name is confusingly similar to Complainant's mark.
Under the Policy, Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's mark without authorization, and is being used to promote products that compete with those offered by Complainant. Such use does not give rise to rights or legitimate interests under the Policy, see, e.g., Amazon Technologies, Inc. v. Irfan Arbiyani, FA 1665621 (Forum Apr. 13, 2016), and Respondent has failed to come forward with any other basis for rights or legitimate interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain names were registered and have been used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent is using a domain name that incorporates Complainant's well-known trademark to promote a competing business, under circumstances strongly supporting an inference that Respondent's conduct is targeted directly at Complainant or its mark. See Amazon Technologies, Inc. v. Irfan Arbiyani, supra (finding bad faith registration and use under similar circumstances). The Panel therefore finds the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amazoncloths.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: April 18, 2017
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