Amazon Technologies, Inc. v. lydio g a cintra
Claim Number: FA2105001945072
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is lydio g a cintra (“Respondent”), Brazil.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amazonlivros.online>, registered with Network Solutions, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 14, 2021; the Forum received payment on May 14, 2021.
On May 17, 2021, Network Solutions, LLC confirmed by e-mail to the Forum that the <amazonlivros.online> domain name is registered with Network Solutions, LLC and that Respondent is the current registrant of the name. Network Solutions, LLC has verified that Respondent is bound by the Network Solutions, 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 May 18, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 7, 2021 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@amazonlivros.online. Also on May 18, 2021, 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 June 9, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is a leading online retailer offering products and services in more than 100 countries around the world. In 1994, Complainant’s Founder Jeff Bezos developed an innovative plan to sell a wide selection of books over the Internet. Complainant opened its virtual doors in July 1995, offering online retail store services featuring books via the web site <www.amazon.com>. In its first four weeks of operation, the company shipped product to customers in all 50 states and in more than 45 other countries. On May 16, 1996, less than a year after its website launched, Complainant was featured on the front page of The Wall Street Journal. In recognition of Complainant’s, in 1999—only five years after its launch—Time Magazine named Mr. Bezos “Person of the Year.” The article described Complainant as the “company everyone wants to be like”. Complainant’s website is the 3rd most-viewed website in the United States and the 11th most-viewed website globally, according to public statistics offered by Internet site ranking company Alexa. More than 29 million users have “liked” and more than 29 million users follow Complainant’s Facebook page. Complainant has more than 3 million followers on Twitter. As of 2014, Complainant had more than 244 million active customer accounts, which are unique email addresses that have placed an order within the prior 12 months. Complainant has rights in the AMAZON mark through its registration in the United States in 1997. The mark is registered elsewhere around the world, including in Brazil, and it is famous.
Complainant alleges that the disputed domain name is identical or confusingly similar to its AMZAON mark because it incorporates the mark in its entirety and merely adds generic term ”livros”, the Portuguese term for “books”, and the “.online” generic top-level domain (“gTLD”). Complainant cites UDRP cases to support its position.
According to Complainant, Respondent does not have any rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name. Further, Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use because the resolving offers for sale competing ebooks in an attempt to pass itself off as Complainant. The resolving website displays the mark and logo of Complainant’s well-known Kindle ebooks. Complainant cites UDRP cases to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith because of the confusion caused as to the affiliation of the disputed domain name and Respondent’s likely commercial gain from its use to offer competing products. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the AMAZON mark. Complainant cites UDRP cases to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark AMAZON dating back to 1997 and uses it to market its online retail business, which includes selling ebooks.
The disputed domain name was registered in 2020.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain name to resolve to a web site that contains links to products and services that compete with those of Complainant. The resolving website displays the mark and logo of Complainant’s well-known Kindle ebooks.
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 disputed domain name incorporates Complainant’s AMAZON mark in its entirety and merely adds the generic term “livros”, which is the Portuguese word for “books”, and the “.online” gTLD. A domain name may be found to be identical or confusingly similar, under Policy ¶ 4(a)(i), despite the addition of generic words and a gTLD. See Oki Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001) (“[T]he fact that a domain name wholly incorporates a Complainant’s registered mark is sufficient to establish identity [sic] or confusing similarity for purposes of the Policy despite the addition of other words to such marks”). Therefore, the Panel finds that the <amazonlivros.online> domain name is confusingly similar to Complainant’s AMAZON mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: absent a response, WHOIS information may be used to determine whether a respondent is commonly known by a disputed domain name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). Here, the WHOIS information of record indicates that the registrant of the disputed domain name is ”lydio g a cintra”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website offers for sale products that compete with those of Complainant. Use of a domain name to sell products that compete directly with a complainant’s business is not a use in connection with a bona fide noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Therefore, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving website offers for sale competing products. This constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See Asbury Auto Group Inc v Tex. Int'l Prop Assocs FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to compete with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of a competing business and was therefore evidence of bad faith and use); see also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). Accordingly, the Panel finds bad faith registration and use per Policy ¶ 4(b)(iv).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website displays the mark and logo of Complainant’s well-known Kindle ebooks. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes 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 <amazonlivros.online> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 10, 2021
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