Amazon Technologies, Inc. v. satya wan / swatanter gupta / Himanshu Kaushik
Claim Number: FA1912001875479
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by David J. Diamond of Richard Law Group, Inc., United States. Respondent is satya wan / swatanter gupta / Himanshu Kaushik (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <alexaamazo.com>, <setupecho.com>, <setupechoplus.com>, <downloadalexaapps.net>, <alexaawebservices.com>, registered with Launchpad.Com Inc. and Pdr Ltd. D/B/A Publicdomainregistry.Com.
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 December 16, 2019; the Forum received payment on December 16, 2019.
On December 17, 2019, Launchpad.Com Inc. confirmed by e-mail to the Forum that the <setupechoplus.com> domain name is registered with Launchpad.Com Inc.; on December 19, 2019, Pdr Ltd. D/B/A Publicdomainregistry.Com confirmed by e-mail to the Forum that the <alexaamazo.com>, <setupecho.com>, and <downloadalexaapps.net>, domain names are registered with Pdr Ltd. D/B/A Publicdomainregistry.Com; on December 27, 2019, Pdr Ltd. D/B/A Publicdomainregistry.Com confirmed by email to the Forum that the <alexaawebservices.com> domain name is registered with Pdr Ltd. D/B/A Publicdomainregistry.Com. Launchpad.Com Inc. and Pdr Ltd. D/B/A Publicdomainregistry.Com confirmed that Respondent is the current registrant of the names. Launchpad.Com Inc. and Pdr Ltd. D/B/A Publicdomainregistry.Com have verified that Respondent is bound by the Launchpad.Com Inc. and Pdr Ltd. D/B/A Publicdomainregistry.Com registration agreements 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 January 2, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 22, 2020 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@alexaamazo.com, postmaster@setupecho.com, postmaster@setupechoplus.com, postmaster@downloadalexaapps.net, postmaster@alexaawebservices.com. Also on January 2, 2020, 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 January 24, 2020, 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 Respondents
In the instant proceedings, Complainant has alleged that the entities which control the five domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Complainant contends that the disputed domain names all share the same registrar and four of the domain names share the same hosting provider. See Amend. Compl. Exs. A-E. Additionally, Complainant argues that four of the five disputed domain names feature similar content and include similar fake download mechanisms. Finally, Complainant notes that four of the five disputed domain names include registrants with the same postal code and phone number. See Amend Compl. Exs. A-B & D-E.
Having regard to all of the foregoing matters, the Panel finds that the domain names are commonly owned/controlled by a single Respondent who is using multiple aliases. The matter may therefore go forward in its present form.
A. Complainant
Complainant made the following contentions.
Complainant, Amazon Technologies Inc., operates in the business of online retail services. Complainant has rights in the AMAZON, ALEXA, and ECHO marks (“Amazon Marks”) based on registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,832,943, registered Apr. 13, 2004; Reg. No. 2,181,470, registered Aug. 11, 1998; Reg. No. 5,469,992, registered May 15, 2018). See Amend. Compl. Ex. DD. Respondent’s <alexaamazo.com>, <setupecho.com>, <setupechoplus.com>, <downloadalexaapps.net>, and <alexaawebservices.com> domain names (“Disputed Domain Names”) are identical and/or confusingly similar to Complainant’s marks because they each incorporate one or more of Complainant’s marks and simply add generic or descriptive words and a generic top level domain (“gTLD”) to form a domain name.
Respondent does not have rights or legitimate interests in the Disputed Domain Names. Respondent is not commonly known by the Disputed Domain Names and Complainant has not granted permission for Respondent to use the marks in a domain name. Further, Respondent fails to use the disputed domain name for any bona fide offering of goods or services, or for any legitimate noncommercial or fair use. Instead, Respondent uses the domains to pass off as Complainant in furtherance of a phishing scheme.
Respondent registered and uses the Disputed Domain Names in bad faith. Respondent’s use of confusingly similar domain names to promote competing services and further a phishing scheme disrupts Complainant’s business and attracts customers to Respondent’s webpages for Respondent’s commercial gain. Additionally, Respondent’s use of typosquatting in two of the Disputed Domain Names evidences bad faith. Finally, Respondent had actual knowledge of Complainant’s rights in the marks as seen from Respondent’s use of Complainant’s logos and information.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States company that operates in the business of online retail services using the AMAZON, ALEXA, and ECHO marks.
2. Complainant has established its trademark rights in the AMAZON, ALEXA, and ECHO marks (“Amazon Marks”) based on their registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,832,943, registered Apr. 13, 2004; Reg. No. 2,181,470, registered Aug. 11, 1998; Reg. No. 5,469,992, registered May 15, 2018).
3. Respondent registered the <alexaamazo.com> domain name on February 21, 2019, the <setupecho.com> domain name on August 12, 2017, the <setupechoplus.com> domain name on January 4, 2018, the <downloadalexaapps.net> domain name on November 20, 2018, and the <alexaawebservices.com> domain name on November 24, 2018.
4. Respondent has used the disputed domain names to pass itself off as Complainant in furtherance of a phishing scheme.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant asserts rights in the Amazon Marks based on registration with the USPTO. Registration of a mark with the USPTO is sufficient to establish rights in that mark under Policy ¶ 4(a)(i). See Thermo Electron Corp. v. Xu, FA 713851 (Forum July 12, 2006) (finding that the complainants had established rights in marks where the marks were registered with a trademark authority). Complainant has provided evidence of registration with the USPTO (e.g. Reg. No. 2,832,943, registered Apr. 13, 2004; Reg. No. 2,181,470, registered Aug. 11, 1998; Reg. No. 5,469,992, registered May 15, 2018). See Amend. Compl. Ex. DD. Therefore, the Panel finds that Complainant has rights in the Amazon Marks under Policy ¶ 4(a)(i).
The next question that arises is whether the disputed domain names are identical or confusingly similar to Complainant’s Amazon Marks. Complainant argues that the Disputed Domain Names are identical and/or confusingly similar to Complainant’s marks because they each incorporate one or more of those marks and simply add generic or descriptive words and a gTLD to form a domain name. The addition of one or more generic/descriptive words and a gTLD to a registered mark is generally insufficient to overcome confusing similarity between the domain name and the mark. 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). Complainant argues that each of the Disputed Domain Names wholly contains one of the Amazon Marks and adds terms such as “setup,” “download,” “apps,” “web,” “services” or “plus” as well as a “.com” or “.net” gTLD. Therefore, the Panel finds that the disputed domain names are identical or confusingly similar to Complainant’s Amazon Marks under 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 famous Amazon Marks and to use them in its domain names, adding generic or descriptive words as described above;
(b) Respondent registered the <alexaamazo.com> domain name on February 21, 2019, the <setupecho.com> domain name on August 12, 2017, the <setupechoplus.com> domain name on January 4, 2018, the <downloadalexaapps.net> domain name on November 20, 2018, and the <alexaawebservices.com> domain name on November 24, 2018.
(c) Respondent has used the domain names to pass itself off as Complainant in furtherance of a phishing scheme.
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant argues that Respondent is not commonly known by the Disputed Domain Names and Complainant has not granted permission for Respondent to use the Amazon Marks in domain names. Evidence that a registrant name that differs greatly from the disputed domain name may be used to show that respondent is not commonly known by the domain name per Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Also, lack of authorization to use a mark may show that the respondent is not commonly known by that name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The WHOIS information of record identifies the registrants of the <alexaawebservices.com> domain name as “Himanshu Kaushik,” the <alexaamazo.com>, <setupecho.com>, <downloadalexaapps.net> domain names as “swatanter gupta,” and the <setupechoplus.com> domain name as “satya wan,” and no information indicates that Complainant has authorized Respondent to use the marks. Therefore, the panel finds that Respondent is not commonly known by the Disputed Domain Names under Policy ¶ 4(c)(ii);
(f) Complainant argues that Respondent fails to use the Disputed Domain Names for any bona fide offering of goods or services, or for any legitimate noncommercial or fair use and instead uses the domains to pass off as Complainant. Use of a disputed domain name to pass off as a complainant is not a bona fide offering of goods or services, or a legitimate noncommercial or fair use. See Dell Inc. v. Devesh Tyagi, FA 1785301 (Forum June 2, 2018) (“Respondent replicates Complainant’s website and displays Complainant’s products. The Panel finds that this use is not a bona fide offering of goods or services under Policy ¶¶ 4(c)(i) & (iii).”). Complainant notes that all the disputed domain names feature Complainant’s marks, logos, and color scheme and the website to which the <alexaawebservices.com> domain name resolves displays images of Complainant’s products. Complainant provides screenshots of the websites resolving at each of the Disputed Domain Names. See Amend. Compl. Exs. F-J. Therefore, the Panel finds that Respondent is not using the domain names for bona fide offerings of goods or services under Policy ¶ 4(c)(i) or legitimate noncommercial or fair uses under Policy ¶ 4(c)(iii);
(g) Complainant also argues that Respondent uses the <alexaamazo.com>, <setupecho.com>, <setupechoplus.com>, and <downloadalexaapps.net> domain names in furtherance of a phishing scheme. Use of confusingly similar domain names to facilitate phishing is not a bona fide offering of goods or services, or a legitimate noncommercial or fair use. See Morgan Stanley v. Zhange Sheng Xu / Zhang Sheng Xu, FA1501001600534 (Forum Feb. 26, 2015) (“The Panel agrees that the respondent’s apparent phishing attempt provides further indication that the respondent lacks any rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”). Complainant provides screenshots of the resolving webpage for these domain names and argues that they attempt to solicit users’ personal information through fraudulent download links. See Amend. Compl. Exs. F-I. Therefore, the Panel finds that Respondent is not using the domain names for bona fide offerings of goods or services or legitimate noncommercial or fair uses under 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 argues that Respondent registered and uses the Disputed Domain Names in bad faith because Respondent’s use of confusingly similar domain names to promote competing services and further a phishing scheme disrupts Complainant’s business and attracts customers to Respondent’s webpages for Respondent’s commercial gain. Use of a disputed domain name to pass off as a complainant and engage in phishing can show an intent to disrupt the complainant’s business and attract users to the respondent’s webpage for commercial gain. See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that the respondent’s registration and use of the disputed domain name, which displayed a website virtually identical to the complainant’s website, constituted bad faith pursuant to Policy ¶ 4(b)(iii)); see also Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”). Complainant provides screenshots of Respondent’s webpages and contends that Respondent creates a false impression of association with Complainant to divert customers to Respondent’s webpage and commercially benefit from a phishing scheme. See Amend. Compl. Exs. F-J. Thus, the Panel finds bad faith registration and use under Policy ¶¶ 4(b)(iii) and (iv).
Secondly, Complainant argue that Respondent’s use of typosquatting in the <alexaamazo.com> and <alexaawebservices.com> domain names evidences bad faith. Use of typosquatting to attract users to a website can be independent evidence of bad faith. See Under Armour, Inc. v. JEFF RANDALL, FA1410001585022 (Forum Nov. 18, 2014) (finding that the respondent’s <unerarmour.com> domain name constitutes typosquatting of the complainant’s UNDER ARMOUR mark, which is evidence of bad faith pursuant to Policy ¶ 4(a)(iii)). Complainant argues that the disputed domain names are an intentional misspelling of the Amazon Marks and therefore constitute typosquatting. As the Panel agrees, the Panel finds bad faith registration and use under Policy ¶ 4(a)(iii).
Thirdly, Complainant claims that Respondent had actual knowledge of Complainant’s rights in the marks as seen from Respondent’s use of Complainant’s logos and information on the resolving webpages. Actual knowledge of a complainant’s rights in a mark can be shown through Respondent’s use of that mark and Complainant’s information in connection with the domain name. See Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum January 5, 2018) (“[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.”); see also iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum January 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). Here, Complainant provides screenshots of its own website and Respondent’s websites and notes that Complainant’s logos and images are being used on Respondent’s websites. See Amend. Compl. Exs. F-K. As the Panel agrees with Complainant, the Panel finds bad faith registration and use under Policy ¶ 4(a)(iii).
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 <alexaamazo.com>, <setupecho.com>, <setupechoplus.com>, <downloadalexaapps.net>, <alexaawebservices.com> domain names be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Panelist
Dated: January 26, 2020
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