Amazon Technologies, Inc. v. HAIGH, Sebastian Thomas / AMAZON LTD
Claim Number: FA2106001950564
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is HAIGH, Sebastian Thomas / AMAZON LTD (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amazon-miners.com>, registered with 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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 10, 2021; the Forum received payment on June 10, 2021.
On June 12, 2021, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <amazon-miners.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 June 15, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 6, 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 firstname.lastname@example.org. Also on June 15, 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 formal response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default. Respondent submitted an informal correspondence via email on Jul. 1, 2021.
On July 9, 2021, 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 name be transferred from Respondent to Complainant.
PRELIMINARY ISSUE – IDENTITY THEFT
As noted already, no Response was filed but the named Respondent contends that it has been the victim of identity theft. On July 1, 2021, the Forum received the following email communication from the named Respondent after receipt of the Complaint:
“Please note that my name, company name and address details are being used here without my consent, and that I control neither the amazon-miners.com domain name nor the gmail address that they use.
I reported this to the registrar of the amazon-miners.com domain (please see attached), and to their hosting company, and to Amazon's legal team in the UK.
This is not the first time that my details have been fraudulently used by the operators of the amazon-miners.com site. Please do all you can to ensure that their operation stays closed.”
The Policy requires all decisions to be published in full[i] except where an Administrative Panel determines in an exceptional case to redact portions for reasons of sensitivity. So, for example, in Wells Fargo & Co. v. John Doe as Holder of Domain Name <wellzfargo.com>, FA 362108 (Forum Dec. 30, 2004) and Wells Fargo & Co. v. John Doe as Holder of Domain Name <wellsfargossl>, FA 453727 (Forum May 19, 2005), the panels omitted the respondents’ personal information from the decisions, pursuant to Policy ¶ 4(j), in an attempt to protect the respondents who claimed to be victims of identity theft from becoming aligned with acts the actual registrants appeared to have sought to impute to the respondents.
However, the Forum’s Supplemental Rule 15(b) states that “[a]ll requests pursuant to Policy paragraph 4(j) and Rule 16(b) to have a portion of the decision redacted, must be made in the Complaint, the Response, or an Additional Submission that is submitted before the Panel’s decision is published.” In this case, neither party has explicitly requested such redaction. Albeit that the Panel may have interpreted the named Respondent’s email to imply such a request, on the facts the Panel is not inclined to find sufficient evidence of identity theft. The disputed domain name was registered using a privacy service to veil the name of the domain name registrant. Apart from the July 1, 2021 email there is no further evidence in support of the claim of stolen identity. The evidence shows that the named Respondent did write to the Registrar in consequence of which the domain name was suspended, but the outcome is inconclusive. No Response was filed and so the Panel is not better informed. Moreover, the Complaint states that:
“The disputed domain name <amazon-miners.com> resolves to a website that promotes Respondent’s purported data centers and cloud cryptocurrency mining services. Respondent charges from $100 to $50,000 for its services. Respondent wholly adopts Complainant’s identity including the Amazon Logos as shown below. Respondent also calls its top tier service the “Bezos Rig,” a reference to Complainant’s CEO and founder Jeff Bezos. There are no disclaimers.
The resolving website for <amazon-miners.com> is substantially identical to the website <amazon-miner.com> which was at issue in Amazon Technologies, Inc. v. HAIGH / Amazon Ltd., FA2008001907569 (Forum Sept. 11, 2020). … Plainly the same entity or individual is responsible for both of these domains.”
The Panel notes what was found in the case of Amazon Technologies, Inc. v. HAIGH / Amazon Ltd., FA2008001907569 (Forum Sept. 11, 2020) and is in agreement with Complainant’s submission that the entity or individual in that earlier case is responsible for the disputed domain name here. In the circumstances the Panel finds that the named Respondent is the proper party to these proceedings and further references to “Respondent” are to it.
Complainant asserts trademark rights in AMAZON. Complainant holds a national registration for that trademark. Complainant submits that the domain name is confusingly similar to its trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent registered the disputed domain name in bad faith.
Respondent failed to submit a Response in this proceeding but wrote informally to the Forum stating that it had been a victim of identity theft.
The factual findings pertinent to the decision in this case are that:
1. Complainant provides a well-known e-commerce and technology platform by reference to the trademark, AMAZON, registered with the United States Patent and Trademark Office (“USPTO”) as, inter alia, Reg. No. 4,608,470, registered on September 23, 2014;
2. the <amazon-miners.com> domain name was registered on October 7, 2020 and has been used to promote data centres and cloud cryptocurrency mining services; and
3. there is no relationship between the parties and Complainant has not authorized Respondent to use its trademark or register any domain name incorporating that trademark.
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 based on 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[ii].
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.
Paragraph 4(a)(i) of the Policy does not distinguish between registered and unregistered trademark rights. It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights[iii]. Complainant provides evidence of its USPTO registration for the trademark AMAZON and so the Panel finds that Complainant has rights in that trademark.
The domain name comprises the trademark with the hyphenated addition of the word “miners” and the gTLD, “.com”. Those additions do not carry any distinctive value and the trademark remains the recognizable part of the disputed domain name. It follows that the Panel finds the disputed domain name to be confusingly similar to the trademark for the purposes of paragraph 4(a)(i) of the Policy.
Accordingly, Complainant has satisfied the first element of the Policy.
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
(iii) you are making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark 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 name, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests[iv].
As discussed, the name of the underlying domain name registrant was shielded by a privacy service provider but in consequence of these proceedings the Registrar disclosed the name of the holder as “HAIGH, Sebastian Thomas” from “AMAZON LTD”. The name, Sebastian Thomas Haigh, does not provide any prima facie evidence that Respondent might be known by the disputed domain name. In the circumstances outlined already, the Panel finds that the name AMAZON LTD was coined to fraudulently imply a connection with Complainant that does not exist and provides no legitimate evidence that Respondent might be known by the disputed domain name[v]. There is nothing else to suggest that Respondent is commonly known by the domain name and there is no evidence it has trademark rights of its own.
Complainant provides screenshots of the resolving website, described already. The Panel finds that Complainant has made a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name since the use is not a bona fide offering of goods or services or legitimate noncommercial or fair use under the Policy[vi].
The onus shifts to Respondent to establish a legitimate interest and, absent a Response, that prima facie case is not rebutted. The Panel finds that Respondent has no rights or interests and so finds that Complainant has satisfied this second limb of the Policy.
Complainant must prove on the balance of probabilities both that the disputed domain name was registered and used in bad faith.
Guidance 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 paragraph 4(b)(iv) has direct application. The Panel has already found the disputed domain name to be confusingly similar to the trademark. In terms of the Policy, the Panel finds that Respondent has intentionally used the domain name to attract, for commercial gain, Internet users to the resolving website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of that website.
The Panel finds registration and use in bad faith and so finds that Complainant has satisfied the third and final element of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amazon-miners.com> domain name be TRANSFERRED from Respondent to Complainant.
Debrett G. Lyons, Panelist
Date: July 15, 2021
[i] See Policy ¶ 4(j).
[ii] See, for example, 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; 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.”)
[iii] See, for example, State Farm Mut. Auto. Ins. Co. v. Periasami Malain, FA 705262 (Forum June 19, 2006) (“Complainant’s registrations with the United States Patent and Trademark Office of the trademark, STATE FARM, establishes its rights in the STATE FARM mark pursuant to Policy, paragraph 4(a)(i).”)
[iv] See, for example, Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000).
[v] See, for example, La Quinta Worldwide, LLC v. La Quinta WorldWide, FA1505001621299 (Forum July 11, 2015) holding that the respondent was not commonly known by the <laquintaworldwide.com> domain name even though “La Quinta WorldWide” was listed as registrant of the disputed domain name because the respondent had failed to provide any additional evidence to indicate that it was truly commonly known by the disputed domain name.
[vi] See, for example, Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Forum Dec. 6, 2003) (“Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).”)
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