Amazon Technologies, Inc. v. pendi sutiana
Claim Number: FA2209002011334
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is pendi sutiana (“Respondent”), International.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amazoneapp.com>, registered with CV. Rumahweb Indonesia.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to Forum electronically on September 8, 2022; Forum received payment on September 8, 2022.
On September 14, 2022, CV. Rumahweb Indonesia confirmed by e-mail to Forum that the <amazoneapp.com> domain name is registered with CV. Rumahweb, Indonesia, and that Respondent is the current registrant of the name. CV. Rumahweb Indonesia has verified that Respondent is bound by the CV. Rumahweb Indonesia 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 September 14, 2022, Forum served the Complaint and all Annexes, including an Indonesian and English language Written Notice of the Complaint, setting a deadline of October 4, 2022, by which Respondent could file a Response to the Complaint, via e-mail message addressed to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to the attention of postmaster@amazoneapp.com. Also on September 14, 2022, the Indonesian 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, Forum transmitted to the parties a Notification of Respondent Default.
On October 10, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Preliminary Issue: LANGUAGE OF THE PROCEEDING
In the ordinary course, UDRP Rule 11(a) provides that the language of this proceeding should be the language of the registration agreement governing the challenged domain name. That language is Indonesian. However, Complainant has requested that the language of the proceeding should instead be English. In support of this request, Complainant submits that:
(i) the domain name contains wholly English words and characters;
(ii) the content of the website resolving from the domain name is
entirely in English;
(iii) Respondent uses the domain name to target a United States-
based company;
(iv) these facts demonstrate Respondent’s proficiency in
English; and
(v) translating the documents needed to conduct this proceeding in
Indonesian would put Complainant to a substantial financial burden and would unnecessarily delay this proceeding.
Respondent does not contest any of these assertions. For that reason, and because UDRP Rule 11(a) permits this Panel to proceed in a language other than that of the governing registration agreement “having regard to the circumstances of the administrative proceeding,” we conclude that it would be in the interests of justice and economy to grant Complainant’s request. See, for example, The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (a panel there exercising discretion in deciding that the language of a proceeding should be English, notwithstanding the different language of the pertinent registration agreement, based on evidence that a respondent had command of the English language).
See also SWX Swiss Exchange v. SWX Financial LTD, D2008-0400 (WIPO May 12, 2008), finding that, in determining which language should be used in conducting a UDRP proceeding, a panel should be mindful that “account should be taken of the risk that a strict and unbending application of paragraph 11 may result in delay, and considerable and unnecessary expenses of translating documents…”).
Accordingly, this proceeding will be conducted in the English language.
A. Complainant
Complainant is a leading retailer offering a wide variety of products and services to customers around the globe.
Complainant also offers its customers mobile software apps including Amazon Prime Video and Amazon Shopping.
Complainant holds a registration for the AMAZON.COM service mark, on file with the United States Patent and Trademark Office (“USPTO”) as Reg. No. 2,837,138, registered April 27, 2004, and renewed as of April 21, 2014.
Respondent registered the domain name <amazoneapp.com> on or about July 3, 2022.
The domain name is confusingly similar to Complainant’s AMAZON.COM mark.
Respondent has not been commonly known by the domain name.
Complainant has not licensed or otherwise authorized Respondent to use the AMAZON.COM mark.
Respondent does not use the domain name in connection with either a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Instead, Respondent uses the domain name to conduct a fraudulent phishing scheme.
Specifically, the website resolving from the domain name purports to offer “free” movies and television shows associated with Complainant in such a way that an Internet user clicking on “play” or “download” links is led to a warning stating that: “This site has been reported as unsafe” and “Microsoft recommends you don't continue to this site. It has been reported to Microsoft for containing phishing threats which may try to steal personal or financial information.”
Internet users who bypass this warning are directed to additional websites that impose account setup procedures including entry of personal credit card information.
Respondent has neither rights to nor legitimate interests in the domain name.
Respondent registered the domain name with knowledge of Complainant’s rights in the AMAZON.COM mark.
Respondent registered the domain name with a WHOIS privacy shield in order to conceal its true identity.
Respondent both registered and now uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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:
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
By virtue of its registration of the AMAZON.COM service mark with a national trademark authority, the USPTO, Complainant has shown that it has rights in that mark sufficient to satisfy the requirement of Policy ¶ 4(a)(i) that it demonstrate standing to pursue its claim against Respondent in this proceeding. See, for example, Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum August 11, 2015):
There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy¶4(a)(i)….
[T]he Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <amazoneapp.com> domain name is, as alleged, confusingly similar to Complainant’s AMAZON.COM service mark. The domain name incorporates the mark in its entirety, with only the interposition of the letter “e,” an abbreviation for “e-commerce” or “electronic commerce,” i.e., the conduct of business via the Internet, as is the case with Complainant, plus the term “app,” an abbreviation for “application,” one of the electronic features of Complainant’s business model. These alterations of the mark, made in forming the domain name, therefore do not save it from the realm of confusing similarity under the standards of the Policy. See, for example, Hewlett-Packard Dev. Co. L.P. v. Surya Tech., FA1059665 (Forum October 2, 2007):
… [A]ddition of a term that relates to the business in which [a UDRP] Complainant engages … [is] … not sufficient to differentiate a domain name from a known mark.
It is significant here that Respondent’s domain name contains two markers for Internet commerce (“e” and “app”) each a signal of its intention to employ the domain name to meddle in Complainant’s business and to profit illicitly from doing so, about which more will be said below.
Under Policy ¶ 4(a)(ii), Complainant must make out a prima facie showing that Respondent has neither rights to nor legitimate interests in the domain name <amazoneapp.com>, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum, August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP¶4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum September 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See, for example, Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶4(c)(i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the domain name <amazoneapp.com>, and that Complainant has not licensed or otherwise authorized Respondent to use the AMAZON.COM mark. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “pendi sutiana,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See, for example, Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum September 4, 2018) (concluding that a respondent was not commonly known by a disputed domain name incorporating the GOOGLE mark where the relevant WHOIS record identified that respondent as “Bhawana Chandel,” and nothing in the record showed that that respondent was authorized to use a UDRP Complainant’s mark in any manner).
We next observe that Complainant asserts, without objection from Respondent, that Respondent uses the <amazoneapp.com> domain name to conduct a fraudulent phishing scheme by which, while posing as Complainant online, it seeks to purloin and turn to profit the confidential personal and financial information of unsuspecting Internet users. It should go without saying that this employment is neither a bona fide offering of goods or services by means of the domain name under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of it under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy. See, for example, Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA1785242 (Forum June 5, 2018):
On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either a bona fide offering of goods or services under Policy¶4(c)(i) or a legitimate noncommercial or fair use under Policy¶4(c)(iii).
See also Qatalyst Partners LP v. Devimore, FA1393436 (Forum July 13, 2011), finding that use of a disputed domain name to perpetrate a fraud online constitutes “clear and convincing proof that Respondent lacks rights [to] and legitimate interests pursuant to Policy ¶ 4(a)(ii).”
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent’s use of the contested <amazoneapp.com> domain name to perpetrate a fraudulent phishing scheme, as detailed in the Complaint, disrupts Complainant’s business. Under Policy ¶ 4(b)(iii), which interprets and applies Policy ¶ 4(a)(iii), this stands as proof of Respondent’s bad faith in registering and using the domain name. See, for example, Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1625750 (Forum July 17, 2015):
Respondent uses the … domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy¶4(a)(iii).
Complainant has thus met its obligations of proof under Policy¶4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <amazoneapp.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: October 14, 2022
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