Amazon Technologies, Inc. v. Sushil Kumar / indivisual
Claim Number: FA1912001875480
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by David J. Diamond of Richard Law Group, Inc., Texas, United States. Respondent is Sushil Kumar / indivisual (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <echosetup.net>, 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.
Paul M. DeCicco, 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, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <echosetup.net> 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 December 20, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 9, 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@echosetup.net. Also on December 20, 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 January 15, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant is one of the world’s leading online retailers. Notably, Complainant is the provider of the Amazon Echo smart devices.
Complainant has rights in the ECHO mark through its registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <echosetup.net> domain name is confusingly similar to Complainant’s ECHO mark as it includes the mark in its entirety, adding the generic word “setup” and the “.net” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <echosetup.net> domain name. Respondent is not commonly known by the disputed domain name and Respondent is not a licensee or authorized to use Complainant’s mark in any fashion. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent’s uses the disputed domain name to pass off as Complainant in order to offer competing technical support for Complainant’s Alexa technology.
Respondent registered and uses the <echosetup.net> domain name in bad faith. Specifically, Respondent has engaged in a pattern of bad faith registration and use. Additionally, Respondent uses a privacy service to conceal its identity. Also, Respondent passes off as Complainant in an attempt to confuse Internet users as to affiliation with Complainant and offers competing technical support services. Finally, Respondent had actual knowledge of Complainant’s rights in the ECHO mark prior to its registration of the disputed domain name.
B. Respondent
Respondent failed to submit a formal Response in this proceeding. However, Respondent nevertheless responded to the Complaint via its email correspondence directed to the dispute resolution provider. In pertinent part Respondent’s email states that Respondent is “ready to surrender the domain.”
Complainant has trademark rights in the ECHO mark.
Respondent registered the at-issue domain name after Complainant acquired rights in ECHO.
Respondent has agreed to transfer the at-issue domain name to Complainant.
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”).
Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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 15(a) of the Rules thus permits a panel to grant a complainant’s requested relief without deference to Policy ¶¶ 4(a)(ii) or 4(a)(iii), when a respondent consents to the requested relief. See Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also, Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004) (“In this case, the parties have both asked for the domain name to be transferred to the Complainant. . . Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.”)
In the instant case there is an express indication that Respondent agrees to transfer its at-issue domain names to Complainant. Respondent, in its short email response states it is “ready to surrender the domain” thereby expressing its desire that the at-issue domain name be transferred to Complainant as Complainant requests. The Panel, noting the parties’ agreement as to the disposition of the at-issue domain names, follows its rationale set out in Homer TLC, Inc. v. Jacek Woloszuk, FA613637 (Forum May 17, 2015), as well as in other similarly reasoned decisions where the respondent likewise agreed to transfer the at-issue domain name to the complainant.
As more fully discussed in the cases referenced immediately above, as a necessary prerequisite to Complainant obtaining its requested relief, even where Respondent agrees to such relief, Complainant must demonstrate that it has rights in a mark that is confusingly similar or identical to the at-issue domain name. Here, Complainant’s ownership of a USPTO trademark registration for its ECHO trademark shows Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i). See State Farm Mutual Automobile Insurance Company v. Henry Francis, FA 1738716 (Forum July 28, 2017) (acknowledging complainant’s rights in a mark when it had registered the mark with the United States Patent and Trademark Office and the Canadian Intellectual Property Office). Furthermore, Respondent in constructing the <echosetup.net> domain name includes Complainant’s ECHO trademark in its entirety, adds the generic term “setup,” a term suggestive of Complainant’s ECHO products, and then appends the top-level domain name “.net” to complete the domain name. The inclusion of a descriptive term and a gTLD is insufficient to distinguish the trademark laden domain name from Complainant’s mark for the purposes of the Policy. Therefore the Panel finds that the at-issue domain name is confusingly similar to Complainant’s trademark pursuant to Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).)
In light of the foregoing, Respondent’s consent to transfer the at-issue domain name permits the Panel to order that the domain name be transferred to Complainant without further analysis regarding paragraph 4(a)(ii) or 4(a)(iii) of the Policy.
The parties having agreed to the requested relief and Complainant having established it has rights in a mark that is confusingly similar to the at-issue domain name, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <echosetup.net> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: January 15, 2020
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