Amazon Technologies, Inc. v. liu ying huan
Claim Number: FA2112001975865
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is liu ying huan (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <blinksecuritycameras.shop> and <blinkoutdoorsecuritycamera.com>, registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn).
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 December 5, 2021; the Forum received payment on December 5, 2021.
On December 7, 2021, Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) confirmed by e-mail to the Forum that the <blinksecuritycameras.shop> and <blinkoutdoorsecuritycamera.com> domain names are registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) and that Respondent is the current registrant of the names. Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) has verified that Respondent is bound by the Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) 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 8, 2021, the Forum served the Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of December 28, 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@blinksecuritycameras.shop, postmaster@blinkoutdoorsecuritycamera.com. Also on December 8, 2021, the Chinese and English language 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 in English and Chinese.
On January 4, 2022, 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 names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
Prior to discussing the three elements of the Policy, the Panel must decide on the language of the proceedings. The Registration Agreement is written in Chinese, thereby making the language of the proceedings Chinese.
Pursuant to UDRP Rule 11(a), the Panel has the authority to determine a different language for the proceedings, having regard to the circumstances of the case. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Pursuant to Rule 10(b), Respondent must be given a fair opportunity to present its case. Pursuant to Rule 10(c), the Panel may weigh the relative time and expense in enforcing the Chinese language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).
In the present case, the disputed domain names contain English words, the resolving websites are in English, Respondent has received the Commencement Notification in Chinese and has chosen not to respond to the Complaint. Pursuant to Rule 11(a), having regard to the circumstances of the case, the Panel determines that fairness and justice to both parties, and due expedition, are best satisfied by conducting the remainder of the proceedings in English. See H-D U.S.A., LLC v. Yoshihiro Nakazawa, FA 1736477 (Forum July 21, 2017); see also UBS AG v. ratzel laura, FA 1735687 (Forum July 14, 2017).
A. Complainant
Complainant states that it launched <amazon.com> in July 1995 and today is one of the world’s leading retailers, offering products and services to more than 100 countries around the globe. Complainant also operates the website <blinkforhome.com> and offers Blink-branded cameras and smart home security devices that are affordable, innovative, and easy-to-use. Armed with two-way audio, HD video, customizable motion detection, and more — Blink smart home security devices allow consumers to see, hear, and speak from the free Blink Home Monitor smartphone app. Complainant introduced Blink in a 2014 Kickstarter campaign and began shipping Blink devices in 2015. Today, Blink battery-powered Outdoor and Indoor cameras and the Blink Mini plug-in cam help consumers protect what matters most no matter where they are. Complainant has rights in the BLINK mark through its registrations with various trademark agencies around the world, dating back to 2018.
Complainant alleges that the disputed domain names are identical or confusingly similar to its BLINK mark as they incorporate the mark in its entirety and merely add the descriptive term “security”, along with either the generic/descriptive terms “camera” or “outdoor” and “cameras”, as well as the “.shop” and “.com” generic top-level domains (“gTLDs”). Complainant cites UDRP precedents to support its position.
According to Complainant, lacks rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names, nor has Complainant authorized or licensed Respondent to use its BLINK mark. Respondent does not use the disputed domain names for any bona fide offerings of goods or services, nor any legitimate noncommercial or fair uses, but instead hosts competing products on the disputed domain names’ resolving websites. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain names in bad faith. Respondent disrupts Complainant’s business for commercial gain by hosting competing products. Respondent registered the disputed domain names with actual knowledge of Complainant’s rights in the BLINK mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns rights in the mark BLINK and uses it to market home security devices.
Complainant’s rights in its mark date back to 2018.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain names were registered in 2020 and 2021.
The resolving websites display Complainant’s mark and logo and offer for sale products that compete with those of 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”).
The disputed domain names incorporate Complainant’s BLINK mark in its entirety and merely add the descriptive term “security”, along with either the generic/descriptive terms “camera” or “outdoor” and “cameras”, as well as the “.shop” and “.com” generic top-level domains (“gTLDs”). Under Policy ¶ 4(a)(i), adding descriptive terms, along with a gTLD is generally insufficient in distinguishing a disputed domain name from the mark it incorporates. See Empowered Medical Solutions, Inc. d/b/a QRS-Direct and QRS Magnovit AG v. NULL NULL / QUANTRON RESONANCE SYSTEMS / JIM ANDERSON / HTR / unknown HTR / HTR, FA 1784937 (Forum June 8, 2018) (“Adding or removing descriptive terms or a gTLD is insufficient to differentiate a disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i).”). Therefore the Panel finds that the disputed domain names are confusingly similar to Complainant’s 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 names: under Policy ¶ 4(c)(ii), where a response is lacking, relevant WHOIS information may demonstrate that a Respondent is not commonly known by the disputed domain name. See Radio Flyer Inc. v. er nong wu, FA 2011001919893 (Forum Dec. 16, 2020) (“Here, the WHOIS information lists “er nong wu” as the registrant and no information suggests Complainant has authorized Respondent to use the RADIO FLYER mark in any way. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”). Here, the WHOIS of record identifies Respondent as “Liu Ying Huan”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).
The resolving websites offer for sale products that compete with those of Complainant. Under Policy ¶¶ 4(c)(i) and (iii), using a disputed domain name to offer competing goods or services is generally not considered a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Upwork Global Inc. v. Shoaib Malik, FA 1654759 (Forum Feb. 3, 2016) (finding that Complainant provides freelance talent services, and that Respondent competes with Complainant by promoting freelance talent services through the disputed domain’s resolving webpage, which is neither a bona fide offering of goods or services, nor is it a legitimate noncommercial or fair use). Therefore the Panel finds that Respondent fails to use the disputed domain names to make a bona fide offerings of goods or services, or any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain names.
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 names.
Indeed, as already noted, the resolving websites offer for sale competing products. Under Policy ¶¶ 4(b)(iii) and (iv), using a disputed domain name to host competing products or services is generally considered evidence of bad faith registration and use. See Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii).”); 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).”). Therefore the Panel finds that Respondent registered and uses the disputed domain names in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
In addition, Respondent registered the disputed domain names with actual knowledge of Complainant’s mark: the resolving websites display Complainant’s mark and logo. 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 <blinksecuritycameras.shop> and <blinkoutdoorsecuritycamera.com> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: January 4, 2022
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