Amazon Technologies, Inc. v. Juan Gines Pedroza Torres / Globaltecnoinc S.L
Claim Number: FA1809001809464
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Juan Gines Pedroza Torres / Globaltecnoinc S.L (“Respondent”), Spain.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <boxamzprime.com>, registered with Soluciones Corporativas IP, SL.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Luz Helena Villamil Jiménez as Panelist.
PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDINGS
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Spanish language Complaint and Commencement Notification, and, absent a Response to the Complaint by the Respondent, determines that the remainder of the proceedings may be conducted in English.
Complainant submitted a Complaint to the Forum electronically on September 28, 2018. The Complaint was submitted in both Spanish and English. The Forum received payment on September 28, 2018.
On September 28, 2018, Soluciones Corporativas IP, SL confirmed by e-mail to the Forum that the <boxamzprime.com> domain name is registered with Soluciones Corporativas IP, SL and that Respondent is the current registrant of the name. Soluciones Corporativas IP, SL has verified that Respondent is bound by the Soluciones Corporativas IP, SL 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 October 3, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, in Spanish and English, setting a deadline of October 23, 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@boxamzprime.com. Also on October 3, 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 October 30, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Luz Helena Villamil Jimenez 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
The Complaint at hand refers to the domain name <boxamzprime.com> registered by Juan Gines Pedroza Torres. Complainant argues that it is apparent that Respondent is the same person or entity held to have acted in bad faith in Amazon Technologies, Inc. v. Global Service Box Prime S.L., FA1806001791557 (Forum July 4, 2018) regarding <boxamazonprime.com> because:
• Respondent registered <boxamzprime.com> the day after the decision on <boxamazonprime.com> was rendered;
• The website to which <boxamzprime.com> resolves is essentially identical to the website to which <boxamazonprime.com> resolved;
• Respondent in this proceeding is identified as “Juan Gines Pedroza Torres.” Respondent in the prior proceeding advised the Forum that its creator and founder was “John Gines Pedroza towers. “John” is the English translation of “Juan” and “Towers” is the English translation of “Torres”. Id. and,
• Respondent’s email in this proceeding is globalservice913@gmail.com. Respondent in the prior proceeding was identified as Global Service Box Prime S.L. and used the email globalserviceboxprimessl@gmail.com. See Amended Exhibit A.
Complainant asserts that the domain name <boxamzprime.com> is confusingly similar to Complainant’s famous, registered marks including AMAZON PRIME. The disputed domain name comprises AMAZON PRIME in its entirety, except that the space between the two words is deleted, the word AMAZON is abbreviated by removing the interior vowels and the letter “n”, and the generic elements “box” and .com are added.
Complainant argues that Respondent does not have a legitimate interest in the disputed domain name, as legitimate interests are defined in Paragraphs 4(c)(i)-(iii) of the UDRP. Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services; Respondent is not making a noncommercial fair use of the disputed domain name; and Respondent has never been legitimately known as or referred to as AMAZON PRIME or any variation thereof.
Lastly, the Complainant contends that Respondent registered the disputed domain name in bad faith. At the time Respondent registered the disputed domain name, Complainant’s trademarks AMAZON, PRIME and AMAZON PRIME were famous and well-known to an extensive number of consumers worldwide, and as an online retailer, Respondent could not be unaware of Complainant’s famous Amazon, Prime and Amazon Prime services or select the combination “AmzPrime” by coincidence.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel has thoroughly reviewed the Complaint together with the evidence submitted to support the allegations. Moreover, the Panel has reviewed the email messages sent by the Respondent to the Forum upon receipt of the Complaint and the supporting materials concerning the case, and based on all the documents, the Panel finds:
- That the assertion made in the Complaint regarding the fact that the Respondent is the same entity who registered the domain name <boxamazonprime.com> which was ordered to be transferred to Amazon Technologies in July, 2018, is exact and accurate. In fact, Respondent stated in his email message of October 30, 2018 that “the domain www.boxamzprime.com is property of the group of companies Global Service”. For reference, Global Service Box Prime S.L. was the Respondent in the Complaint regarding the domain name <boxamazonprime.com>.
- That Complainant is the exclusive owner of the trademarks AMAZON, PRIME, AMAZON PRIME, and AMAZON.COM which are duly registered and in force in the United States.
- That the trademark AMAZON is a widely recognized trademark, famous and well-known by consumers around the world. The documentation attached to the Complaint leave no doubt as regards the extension of the knowledge of the trademark, as well as of the website www.amazon.com owned by the Complainant.
- That the disputed domain name <boxamzprime.com> does resolve to a retail store for electronics which uses the “AMAZON PRIME” trademark, and that Amazon Prime is a service rendered by Amazon.
- That the word “BOX” used by the Respondent in the disputed domain name and also on its website has a particular significance in connection with the services rendered by the Complainant, inasmuch as Amazon ships products in boxes, and in addition, sells boxes to consumers.
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 demonstrated with the trademark registration copies submitted with the Complaint that it is the exclusive owner of the trademarks AMAZON, PRIME, AMAZON PRIME and AMAZON.COM. In addition, it was demonstrated that the mentioned trademarks are widely used and promoted to an extent that it would not be possible to validly argue that the existence of said marks was not known.
The Panel concurs with the Complainant in that the disputed domain name comprises the trademark AMAZON PRIME in its entirety even though the space between the words was deleted and the word AMAZON was abbreviated by removing the interior vowels and the letter “n”, and in addition the generic elements “box” and .com were added. The Panel considers that in spite of the attempted “changes” introduced by the Respondent to the trademark AMAZON, there is no doubt that the disputed domain is based on said trademark, and also on the trademark AMAZON PRIME. This is clearly seen on the webpage <boxamzprime.com>, a sample of which was attached to the Complaint, where the word BOX (used in a manner that clearly resembles the boxes that appear everywhere in the AMAZON.COM website) is placed above the words AMAZON PRIME.
It is therefore evident for the Panel that the disputed domain is likely to be viewed as incorporating the AMAZON and AMAZON PRIME trademarks by visitors to Respondent’s website, a circumstance that no doubt may lead consumers to erroneously believe either that the website <boxamzprime.com> belongs to the Claimant, or that there is a business association between the Claimant and the Respondent.
In light of the foregoing, the Panel considers that the Policy requirement in Paragraph 4(a)(i) is met as to the fact that the disputed domain name <boxamzprime.com> is confusingly similar to the trademarks AMAZON, PRIME and AMAZON PRIME owned by the Complainant.
Once again, the Panel concurs with the Complainant’s assertion as regards the fact that the usage of the disputed domain name by the Respondent cannot be held as a bona fide offering of goods and services. Indeed, the fact that the Respondent uses the disputed domain name to resolve to an online retail store for electronics that competes with Complainant’s services and where Complainant’s trademark AMAZON PRIME is used without any kind of shame does indicate that the Respondent’s use of the disputed domain name does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
As mentioned in his emails to the Forum, the Respondent pretends to claim rights over the disputed domain <boxamzprime.com> from the fact that he lives in Spain and therefore the regulations concerning domain names do not apply to him since allegedly the Forum and the Complainant are from abroad. It is imperative to state in this point that the allegations by the Respondent do reveal that he willingly decided to go ahead with the registration of the disputed domain name ignoring the regulations that are informed to all registrants when purchasing a domain name, according to which “By applying to register a domain name, or by asking us to maintain or renew a domain name registration, you hereby represent and warrant to us that (a) the statements that you made in your Registration Agreement are complete and accurate; (b) to your knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party; (c) you are not registering the domain name for an unlawful purpose; and (d) you will not knowingly use the domain name in violation of any applicable laws or regulations. It is your responsibility to determine whether your domain name registration infringes or violates someone else's rights. (Uniform Domain Name Dispute Resolution Policy as approved by ICANN on October 24, 1999). This policy is incorporated into all Registration Agreements, setting forth the terms and conditions for the registration of domain names, and therefore by completing the domain registration registrants agree to these terms. It should be taken into account that the agreement contains important information about the rights in the domain name and the use of the registrant’s personal data, and as noted by ICANN on the general information for registering a domain name (https://www.icann.org/resources/pages/faqs-84-2012-02-25-en#1) while it may be tempting to speed the registration process of a domain name by fast clicking "I AGREE" with the terms and conditions, not reading them may entail unpleasant surprises later. This policy is incorporated into the Registration Agreement of the disputed domain <boxamzprime.com>, and therefore no claim regarding the nationality of the Respondent is acceptable in the present case.
According to the foregoing, the Panel considers that far from deriving rights from the fact of being the Respondent a Spanish individual, his claims in this respect reaffirm his lack of rights and legitimate interests over the disputed domain. Moreover, the Respondent dares to state in one of his email messages that AMZ means Actual Mental Zidon something that in his words, has absolutely nothing to do with the Amazon company. This statement does offend and insult everyone’s intelligence, for it being openly contrary to the evidence. AMZ does have a clear relationship with AMAZON, and he himself demonstrates it by using the trademark AMAZON PRIME on his website.
In light of the foregoing, the Panel establishes that the Policy requirement in Paragraph 4(a)(ii) is met inasmuch as the Respondent has no rights or legitimate interests in respect of the domain name <boxamzprime.com>.
According to Paragraph 4(b) of the Policy, certain circumstances are evidence of bad faith in the registration and use of a given domain name. Among such circumstances the Policy mentions in Paragraph 4(b)(iv): using the domain name to intentionally attempt to attract, for commercial gain, Internet users to the 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 you’re the Respondent’s site or location or of a product or service on the Respondent’s web site or location.
Now, as mentioned before, the fact that the Respondent uses the disputed domain name to resolve to an online retail store for electronics that competes with Complainant’s services and where Complainant’s trademark AMAZON PRIME is used by the Respondent on his website as if said trademark was available for usage by everyone, does indicate that Respondent registered the disputed domain <boxamzprime.com> attempting to attract for commercial gain internet users to his website, creating a likelihood of confusion with Complainant’s trademarks AMAZON, PRIME and AMAZON PRIME. Thus, the bad faith in this behavior is blatant and undeniable.
Furthermore, the fact that the Respondent registered the disputed domain the day after the domain www.boxamazonprime.com was ordered to be transferred to the Complainant adds another ingredient of bad faith to the present case, where Respondent appears to be determined to make a business by using Complainant’s trademarks and goodwill.
Due to all the above, it is imperative to conclude that the disputed domain name <boxamzprime.com> has been registered and is being used in bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <boxamzprime.com> domain name be TRANSFERRED from Respondent to Complainant.
Luz Helena Villamil Jimenez, Panelist
Dated: November 13, 2018
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