Amazon Technologies, Inc. v. Nishant Pandey / raj bhardwaj / Adsflicker
Claim Number: FA1902001831873
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Nishant Pandey / raj bhardwaj / Adsflicker (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <alexamazonn.com>, registered with GoDaddy.com, LLC, and <downloadalexaap.com>, registered with NameCheap, 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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 27, 2019; the Forum received payment on February 27, 2019.
On February 28, 2019, GoDaddy.com, LLC and NameCheap, Inc. confirmed by e-mail to the Forum that the <alexamazonn.com> and <downloadalexaap.com> domain names are registered with GoDaddy.com, LLC and NameCheap, Inc. and that Respondent is the current registrant of the names. GoDaddy.com, LLC and NameCheap, Inc. have verified that Respondent is bound by the GoDaddy.com, LLC and NameCheap, Inc. registration agreements and have 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 5, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 25, 2019 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@alexamazonn.com, and postmaster@downloadalexaap.com. Also on March 5, 2019, 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 March 27, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons 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.
A. Complainant
Complainant asserts trademark rights in AMAZON and ALEXA. Complainant holds national registrations for those trademarks. Complainant submits that the disputed domain names are confusingly similar to its trademarks.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain names.
Complainant alleges that Respondent registered the disputed domain names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The factual findings pertinent to the decision in this case are that:
1. Complainant is a large and well-known online retailer;
2. Complainant owns, inter alia, United States Patent and Trademark Office (“USPTO”) Reg. No. 2,078,496, registered July 15, 1997 for AMAZON and Reg. No. 2,181,470, registered August 11, 1998 for ALEXA;
3. the disputed domain names, <alexamazonn.com> and <downloadalexaap.com> were registered on August 23, 2018 and October 1, 2018, respectively;
4. the websites resolving from the domain names use the registered trademarks and purport to offer downloads and technical support services; and
5. there is no agreement between the parties as to use of the trademarks or registration of domain names which might incorporate the trademarks.
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.
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry—a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.
It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights (see, for example, Mothers Against Drunk Driving v. phix, FA 174052 (Forum Sept. 25, 2003)). Complainant therefore has rights since it provides proof of its registrations with the USPTO, a national trademark authority.
For the purposes of comparison of the disputed domain names with the trademarks, the gTLD, “.com”, can be disregarded (see, for example, Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Forum Dec. 31, 2007) finding that “a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names”). The comparisons resolve to the term alexamazonn with AMAZON and downloadalexaap with ALEXA. In the latter comparison the added matter, being the descriptive word “download” and an obvious misspelling of the abbreviation, “app”, is wholly non-distinctive. The domain name is confusingly similar to the ALEXA trademark (see, for example, MTD Products Inc v J Randall Shank, FA 1783050 (Forum June 27, 2018) holding that “The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”). On the other hand, the former comparison involves a term which is essentially a portmanteau of both of Complainant’s trademarks. There is a long history of UDRP decisions concerned with domain names of that kind and whilst the logic applied by panels has varied widely, the consensus has been to find confusingly similarity with the relevant trademark(s). Here, the Panel can approach the comparison from first principles and find that the term alexamazonn is confusingly similar to the well-known trademark, AMAZON, since the trademark is the readily recognizable part of the whole.
Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in respect of both domain names.
Rights or Legitimate Interests
Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain names, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests (see, for example, Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000)).
The publicly available WhoIs information identifies the domain name holder in each case as “Nishant Pandey raj bhardwaj / Adsflicker”. That information does not support any finding that Respondent might be commonly known by either of the disputed domain names. There is no evidence that Respondent has any trademark rights. The disputed domain names resolve to websites which use Complainant’s trademarks and offer various downloads or updates or support. Complainant argues that in so doing Respondent attempts to pass itself off as Complainant. Whether that be so or not, the Panel accepts Complainant’s submission that Respondent has not been authorized to use the trademarks and so the Panel finds that Respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use.
The Panel finds that a prima facie case has been made out and so the onus shifts to Respondent (see, for example, See BALENCIAGA SA v. ling lin, FA 1768542 (Forum Feb. 16, 2018) holding that “The disputed domain names incorporate Complainant's registered mark, and are being used for websites that prominently display Complainant's mark and logo, along with apparent images of Complainant's products, offering them for sale at discounted prices. The sites do not disclaim any connection with Complainant, and in fact seem to be designed to create an appearance of such a connection. Such use does not give rise to rights or legitimate interests.”). In the absence of a Response, Panel finds that Respondent has no rights or interests and so finds that Complainant has satisfied the second limb of the Policy in respect of both domain names.
Registration and Use in Bad Faith
Complainant must prove on the balance of probabilities both that the disputed domain names were registered in bad faith and used in bad faith.
Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established.
The four specified circumstances are:
‘(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent’s website 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 the respondent’s website or location or of a product or service on the site or location.’
The Panel finds that Respondent’s conduct falls squarely under paragraph 4(b)(iv) above. The Panel finds registration and use in bad faith under that provision (see, for example, 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.”)
Panel finds that Complainant has satisfied the third and final element of the Policy in respect of both disputed domain names.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <alexamazonn.com> and <downloadalexaap.com> domain names be TRANSFERRED from Respondent to Complainant.
Debrett G. Lyons, Panelist
Dated: March 30, 2019
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