Amazon Technologies, Inc. v. Pablo Espinal
Claim Number: FA1808001800983
Complainant is Amazon Technologies, Inc. ("Complainant"), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Pablo Espinal ("Respondent"), Dominican Republic.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kindledominator.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 August 10, 2018; the Forum received payment on August 10, 2018.
On August 13, 2018, GoDaddy.com, LLC confirmed by email to the Forum that the <kindledominator.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 August 13, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 4, 2018 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@kindledominator.com. Also on August 13, 2018, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On September 5, 2018, 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 any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is one of the world's largest online retailers. Complainant has produced electronic reading devices since 2007; the devices are available in 175 countries, and millions have been sold. Complainant uses the KINDLE mark in connection with its e-reader devices and associated content and support services. Complainant asserts that the KINDLE mark has become famous as a result of extensive use, advertising, media coverage, and commercial success. KINDLE is a registered trademark in the United States and other jurisdictions. Complainant provides its customers with information regarding sales rankings of products and services available on its websites, including categories of ebooks offered through its Kindle store. Complainant's terms of use prohibit customers and content creators from manipulating these sales rankings by creating multiple accounts, impersonating others, posting content in exchange for compensation, or other means.
Respondent registered the disputed domain name <kindledominator.com> in June 2018, and is using it for a website that displays graphics derived from Complainant's logos and offers to sell a service that manipulates sales rankings on Complainant's websites. Complainant alleges that Respondent's website is deceptive and is violative of the Lanham Act and other U.S. laws. Complainant states that Respondent is not an authorized vendor, supplier, or distributor of Complainant's goods and services.
Complainant
contends on the above grounds that the disputed domain name <kindledominator.com>
is confusingly similar to its KINDLE mark; that Respondent lacks 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 Response in this proceeding.
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 <kindledominator.com> incorporates Complainant's registered KINDLE trademark, adding the arguably generic word "dominator" 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. Surjeet Singh, FA 1685229 (Forum Aug. 26, 2016) (finding <kindlesupportonline.com> confusingly similar to KINDLE). The Panel considers the disputed domain name to be confusingly similar to Complainant's registered mark.
Under the Policy, the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the 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 registered mark without authorization. It is being used for a website promoting what Complainant alleges to be a deceptive and unlawful service. Such use is unlikely to give rise to rights or legitimate interests under the Policy. See, e.g., Amazon Technologies, Inc. v. Jeremy S. Moore, FA 1666264 (Forum Apr. 25, 2016) (finding lack of rights or interests in <buyamazonreviews.com> under similar circumstances). Respondent’s gratuitous use of Complainant’s trademarked logo and the apparent lack of a clear disclaimer preclude any claim of nominative fair use. See, e.g., AB Electrolux v. AMR AAMER, FA 1744407 (Forum Sept. 12, 2017).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or 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 name was registered and are being 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 registered a domain name incorporating Complainant's registered mark, and is using it to promote an allegedly deceptive and unlawful service. Such conduct is indicative of bad faith registration and use under both of these provisions of the Policy. See, e.g., Amazon Technologies, Inc. v. Jeremy S. Moore, supra (finding bad faith registration and use in similar circumstances). The Panel finds that 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 <kindledominator.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: September 7, 2018
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