Amazon Technologies, Inc. and Twitch Interactive, Inc. v. Prateek Kapoor / Callspartner
Claim Number: FA1803001774982
Complainant is Amazon Technologies, Inc. and Twitch Interactive, Inc. (“Complainant”), represented by David J. Diamond of Richard Law Group, Inc., Texas, USA. Respondent is Prateek Kapoor / Callspartner (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <twitchtvactivate.com>, registered with GoDaddy.com, LLC, and <amazonsupportz.com>, registered with Eranet International Limited.
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 Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 8, 2018; the Forum received payment on March 8, 2018.
On March 8, 2018, Eranet International Limited confirmed by e-mail to the Forum that the <amazonsupportz.com> domain name is registered with Eranet International Limited and that Respondent is the current registrant of the name. On March 9, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <twitchtvactivate.com> domain name is registered with GoDaddy.com, LLC; and that Respondent is the current registrant of the name. On March 8, 2018, Eranet International Limited has verified that Respondent is bound by the Eranet International Limited 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 9, 2018, GoDaddy.com, LLC GoDaddy.com 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 12, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 18, 2018 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@twitchtvactivate.com, postmaster@amazonsupportz.com. Also on March 12, 2018, 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 May 23, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honourable Neil Anthony Brown QC 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 names be transferred from Respondent to Complainant.
Preliminary Issue: Multiple Complainants
In the instant proceedings, there are two Complainants. Paragraph 3(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that “[a]ny person or entity may initiate an administrative proceeding by submitting a complaint.” The Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.”
There are two (2) Complainants in this matter: Amazon Technologies, Inc. (“Amazon) and Twitch Interactive, Inc. (“Twtich”). Complainants are wholly-owned subsidiaries of Amazon.com, Inc. See Amend. Compl. Ex. B.
Previous panels have interpreted the Forum’s Supplemental Rule 1(e) to allow multiple parties to proceed as one party where they can show a sufficient link to each other. For example, in Vancouver Org. Comm. for the 2010 Olympic and Paralymic Games & Int’l Olympic Comm. v. Malik, FA 666119 (Forum May 12, 2006), the panel stated:
It has been accepted that it is permissible for two complainants to submit a single complaint if they can demonstrate a link between the two entities such as a relationship involving a license, a partnership or an affiliation that would establish the reason for the parties bringing the complaint as one entity.
In Tasty Baking, Co. & Tastykake Invs., Inc. v. Quality Hosting, FA 208854 (Forum Dec. 28, 2003), the panel treated the two complainants as a single entity where both parties held rights in trademarks contained within the disputed domain names. Likewise, in Am. Family Health Srvs. Group, LLC v. Logan, FA 220049 (Forum Feb. 6, 2004), the panel found a sufficient link between the complainants where there was a license between the parties regarding use of the TOUGHLOVE mark. But see AmeriSource Corp. v. Park, FA 99134 (Forum Nov. 5, 2001) (“This Panel finds it difficult to hold that a domain name that may belong to AmerisourceBergen Corporation (i.e., the subject Domain Names) should belong to AmeriSource Corporation because they are affiliated companies.”).
As the Panel accepts that the evidence in the Complaint is sufficient to establish a sufficient nexus or link between the Complainants, it will treat them all as a single entity in this proceeding.
The matter may therefore proceed and the Complainants will be collectively referred to as “Complainant.”
A. Complainant
Complainant made the following contentions.
Complainant is one of the world’s largest online retailers and offers products and services in connection with the AMAZON mark. Complainant also operates the world’s leading social video platform and online community for gamers in connection with the TWITCH mark. Complainant has rights in the AMAZON and TWITCH marks through its trademark registrations with the United States Patent and Trademark (“USPTO”) (AMAZON – e.g., Reg. No. 2,832,943, registered Apr. 13, 2004), (TWITCH – e.g., Reg. No. 4,275,948, registered Jan. 15, 2013). See Amend. Compl. Exs. L and R. Respondent’s <twitchtvactivate.com> and <amazonsupportz.com> domain names are confusingly similar to Complainant’s AMAZON and TWITCH marks because Respondent merely adds generic terms (“activate” and “supportz”) and a “.com” generic top-level domain (“gTLD”) to Complainant’s marks.
Respondent has no rights or legitimate interests in the <twitchtvactivate.com> and <amazonsupportz.com> domain names. Respondent is not licensed or otherwise authorized to use Complainant’s AMAZON and TWITCH marks and is not commonly known by the disputed domain names. Additionally, Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the <twitchtvactivate.com> domain name to pass off as Complainant, offer competing goods and services, and distribute malware. Additionally, Respondent fails to use the <amazonsupportz.com> domain name in connection to an active website and engages in typosquatting (addition of the letter “z”).
Respondent registered and is using the <twitchtvactivate.com> and <amazonsupportz.com> domain names in bad faith. Respondent engages in a pattern of bad faith registration and use because Respondent registered other domain names incorporating third-party marks. Respondent disrupts Complainant’s business by diverting users to the <twitchtvactivate.com> domain name which offers competing goods and services. Respondent also attempts to attract users for commercial gain by passing off as Complainant. Additionally, Respondent’s distribution of malware at the disputed domain name is evidence of bad faith. Moreover, Respondent’s failure to make active use of the <amazonsupportz.com> domain name is indicative of bad faith. Respondent also engages in typosquatting with respect to this disputed domain name. Furthermore, due to the fame and Respondent’s use of the AMAZON and TWITCH marks, Respondent had actual knowledge of Complainant’s rights in the mark prior to registering the disputed domain names.
A. Respondent
While Respondent did not submit a response, the Panel notes that Respondent did correspond with the Forum. Respondent stated in its correspondence that it used the disputed domain names to generate traffic and make money.
1. Complainant is a United States company that is one of the world’s largest online retailers and offers products and services in connection with the AMAZON mark. Complainant also operates the world’s leading social video platform and online community for gamers in connection with the TWITCH mark.
2. Complainant has established its rights in the AMAZON and TWITCH marks through their registrations with the United States Patent and Trademark (“USPTO”) (AMAZON – e.g., Reg. No. 2,832,943, registered Apr. 13, 2004), (TWITCH – e.g., Reg. No. 4,275,948, registered Jan. 15, 2013).
3. Respondent registered the <twitchtvactivate.com> and <amazonsupportz.com> domain names on September 2, 2017 and September 28, 2017 respectively.
4. Respondent uses the <twitchtvactivate.com> domain name to pass itself off as Complainant, offer competing goods and services, and distribute malware.
5. Respondent has failed to use the <amazonsupportz.com> domain name in connection to an active website.
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 first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant submits that it has rights in the AMAZON and TWITCH marks through its trademark registrations with the USPTO (AMAZON – e.g., Reg. No. 2,832,943, registered Apr. 13, 2004), (TWITCH – e.g., Reg. No. 4,275,948, registered Jan. 15, 2013). See Amend. Compl. Exs. L and R. Registering a mark with the USPTO is sufficient to demonstrate rights in a mark under Policy ¶ 4(a)(i). See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark). Therefore, the Panel finds Complainant has sufficiently demonstrated its rights in the AMAZON and TWITCH marks per Policy ¶ 4(a)(i).
The next question that arises is whether the disputed domain names are identical or confusingly similar to Complainant’s AMAZON and/or TWITCH marks.
Complainant submits that Respondent’s <twitchtvactivate.com> and <amazonsupportz.com> domain names are confusingly similar to Complainant’s TWITCH and AMAZON marks as Respondent merely adds a generic term to the marks, “tvactivate” to the TWITCH trademark and “supportz” to the AMAZON trademark and also a gTLD. Adding generic terms and/or a “.com” gTLD to a complainant’s mark does not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy). The Panel agrees with Complainant that Respondent has merely added the terms “tvactivate” and “supportz” and a “.com” gTLD to the marks. Therefore, the Panel finds Respondent’s disputed domain names are confusingly similar to Complainant’s AMAZON and TWITCH marks per Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s AMAZON and TWITCH trademarks and to use them in its domain names, adding a generic word in each case that does not negate the confusing similarity with Complainant’s trademarks;
(b) Respondent registered the <twitchtvactivate.com> and <amazonsupportz.com> domain names on September 2, 2017 and September 28, 2017 respectively;
(c) Respondent has used the <twitchtvactivate.com> domain name to pass itself off as Complainant, offer competing goods and services, and distribute malware and has failed to use the <amazonsupportz.com> domain name in connection to an active website;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant submits that Respondent has no rights or legitimate interests in the <twitchtvactivate.com> and <amazonsupportz.com> domain names. Specifically, Complainant contends Respondent is not permitted or otherwise authorized to use Complainant’s AMAZON or TWITCH marks and is not commonly known by the disputed domain names. In cases where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Complainant provides printouts of WHOIS information for the disputed domain names which identify Respondent as “Prateek kapoor / Callspartner.” See Amend. Compl. Ex. A. Thus, the Panel finds Respondent is not commonly known by the disputed domain names per Policy ¶ 4(c)(ii);
(f) Complainant submits that Respondent does not use the <twitchtvactivate.com> and <amazonsupportz.com> domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Complainant Respondent offers competing support services and information to allow users access to Complainant’s services. Use of a disputed domain name to compete with a complainant is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Complainant provides screenshots for the <twitchtvactivate.com> domain name which resolves to a website that offers an activation service for Complainant’s TWITCH product. See Amend. Compl. Ex. U. Complainant claims that the activation button on the disputed domain name’s resolving website is a scam, which redirects users to a Facebook website that features Complainant’s marks, color scheme and logos. See Amend. Compl. Ex. W. Thus, the Panel finds Respondent does compete with Complainant and this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii);
(g) Complainant argues Respondent uses the <twitchtvactivate.com> domain name to pass itself off as Complainant. Use of a disputed domain name to pass off is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Nokia Corp. v. Eagle, FA 1125685 (Forum Feb. 7, 2008) (finding the respondent’s use of the disputed domain name to pass itself off as the complainant in order to advertise and sell unauthorized products of the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c) (i), or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)). Complainant provides a screenshot of the disputed domain name’s resolving website which offers an activation service or users’ devices. See Amend. Compl. Ex. U. Complainant argues users who click on the “Activate” button are redirect to a Facebook page that falsely attempts to associate and/or pass itself off as Complainant’s request. See Amend. Compl. Ex. W. Therefore, the Panel finds Respondent attempts to pass itself off as Complainant which is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii);
(h) Complainant contends Respondent uses the <twitchtvactivate.com> domain name to conduct a scam and deliver malware, specifically, subjecting users to endlessly looping download dialogs. Use of a disputed domain name to distribute malware cannot amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Ceridian Corp. v. Versata Software, Inc., FA 1259927 (Forum June 23, 2009) (finding that a respondent’s use of a disputed domain name to direct Internet users to a website which attempts to download computer viruses “failed to create any semblance of a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)”). Complainant provides a screenshot of the disputed domain name’s resolving website that contains a malware warning located at the bottom right corner of the page. See Amend. Compl. Ex. X. Thus, the Panel finds Respondent distributes malware at the disputed domain name and this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii);
(i) Complainant alleges Respondent has no rights or legitimate interests in the <amazonsupportz.com> domain name because Respondent fails to make active use of the disputed domain name. Failure to make active use of a disputed domain name is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Thermo Electron Corp. v. Xu, FA 713851 (Forum July 12, 2006) (finding that the respondent’s non-use of the disputed domain names demonstrates that the respondent is not using the disputed domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)). Complainant provides a screenshot of the disputed domain name’s resolving website which shows an error message reading, “Error 523, Origin is unreachable.” See Amend. Compl. Ex. Y. Thus, the Panel finds Respondent’s inactive holding of the disputed domain name is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii).
All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain names.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain names were registered in bad faith and have been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain names were registered and used in bad faith. That is so for the following reasons.
First, Complainant submits that Respondent registered and is using the <twitchtvactivate.com> and <amazonsupportz.com> domain names in bad faith. Specifically, Complainant contends Respondent engages in a pattern of bad faith registration because Respondent registered other domain names incorporating third-party marks. Registration of domain names which incorporate third-party marks may be evidence of bad faith under Policy ¶ 4(b)(ii). See Australian Stock Exch. v. Cmty. Internet (Australia) Pty Ltd, D2000-1384 (WIPO Nov. 30, 2000) (finding bad faith under Policy ¶ 4(b)(ii) where the respondent registered multiple infringing domain names containing the trademarks or service marks of other widely known Australian businesses). Complainant provides copies of WHOIS information for other domain names Respondent allegedly registered, including: <appleeseo.com>, <managenortonnow.com>, and <my-roku-link.com>. See Amend. Compl. Ex. Z. Thus, the Panel finds that Respondent’s registration of other domain name incorporating third-party marks establishes Respondent’s pattern of bad faith registration per Policy ¶ 4(b)(ii).
Secondly, Complainant argues that Respondent disrupts Complainant’s business by diverting users to the disputed domain names and offering a competing support service. Redirecting users to a disputed domain name which offers competing goods or services may indicate bad faith under Policy ¶ 4(b)(iii). See Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii).”). Complainant provides a screenshot of the <twitchtvactivate.com> domain name, which resolves to a website that offers activation services for devices in connection with Complainant’s TWITCH marks and product. See Amend. Compl. Ex. U. Therefore, the Panel finds Respondent disrupts Complainant’s business by offering competing services and holds that Respondent registered and used the domain names in bad faith per Policy ¶ 4(b)(iii).
Thirdly, Complainant contends that Respondent attracts users to the <twitchtvactivate.com> domain name where Respondent attempts to pass itself off as Complainant. Use of a disputed domain name to pass off as a complainant may suggest bad faith registration and use under Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”). Complainant provides a screenshot of the disputed domain name’s resolving website which offers an activation service for devices in connection with Complainant’s TWITCH mark and services. See Amend. Compl. Ex. U. Thus, the Panel finds Respondent’s passing itself off as Complainant evinces a finding of bad faith per Policy ¶ 4(b)(iv).
Fourthly, Complainant argues Respondent’s <twitchtvactivate.com> domain name distributes malware to users who click on the “Activate” button. Distribution of malware through a disputed domain name may be evidence of bad faith under Policy ¶ 4(a)(iii). See Amazon Technologies, Inc. v. Timothy Mays aka Linda Haley aka Edith Barberdi, FA1504001617061 (Forum June 9, 2015) (“In addition, Respondent’s undenied use of the websites resolving from the contested domain names to distribute malware and other malicious downloads further illustrates its bad faith in the registration and use of those domain names.”). Complainant provides a screenshot of the disputed domain name’s resolving website which contains a malware warning in the bottom right corner of the page. See Amend. Compl. Ex. X. Therefore, the Panel finds that Respondent uses the disputed domain name to distribute malware and this is evidence of bad faith per Policy ¶ 4(a)(iii).
Fifthly, Complainant contends that Respondent fails to make active use of the <amazonsupportz.com> domain name and this constitutes bad faith. Failure to make active use of a disputed domain name may evince a finding of bad faith under Policy ¶ 4(a)(iii). See Dermtek Pharmaceuticals Ltd. v. Sang Im / Private Registration, FA1310001522801 (Forum Nov. 19, 2013) (holding that because the respondent’s website contained no content related to the domain name and instead generated the error message “Error 400- Bad Request,” the respondent had registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii)). Complainant provides a screenshot of the disputed domain name which resolves to a blank website with an error message. See Amend. Compl. Ex. Y. Consequently, the Panel finds Respondent’s failure to make active use of the disputed domain name evinces a finding of bad faith per Policy ¶ 4(a)(iii).
Fifthly, Complainant submits that Respondent had actual or constructive knowledge of Complainant’s AMAZON and TWITCH marks. Generally, UDRP panels decline to find bad faith as a result of constructive knowledge. See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."). The Panel agrees with Complainant, however, that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain names and finds that actual knowledge does adequately evince bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). Complainant contends that, due to the fame and Respondent’s use of the AMAZON and TWITCH marks, Respondent had actual knowledge of Complainant’s rights in the marks prior to registration. The Panel agrees with Complainant and finds that Respondent did have actual knowledge of Complainant’s marks, demonstrating bad faith under Policy ¶ 4(a)(iii).
Finally, in addition and having regard to the totality of the evidence, the Panel finds that, in view of Respondent’s registration of the disputed domain names using the AMAZON and TWITCH marks and in view of the conduct that Respondent has engaged in when using the disputed domain names, Respondent registered and used them in bad faith within the generally accepted meaning of that expression.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amazonsupportz.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Panelist
Dated: May 24, 2018
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