Amazon Technologies, Inc. v. xiansheng chen / chenxiansheng / Alise Mate
Claim Number: FA2210002016514
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas. Respondent is xiansheng chen / chenxiansheng / Alise Mate (“Respondent”), sg.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <amazonmapp.com> and <amazonpphp.com>, (‘the Domain Names’) registered with Web Commerce Communications Limited dba WebNic.cc; Gname.com Pte. Ltd..
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to Forum electronically on October 18, 2022; Forum received payment on October 18, 2022.
On October 19, 2022; Oct 24, 2022, Web Commerce Communications Limited dba WebNic.cc; Gname.com Pte. Ltd. confirmed by e-mail to Forum that the <amazonmapp.com> and <amazonpphp.com> Domain Names are registered with Web Commerce Communications Limited dba WebNic.cc; Gname.com Pte. Ltd. and that Respondent is the current registrant of the names. Web Commerce Communications Limited dba WebNic.cc; Gname.com Pte. Ltd. has verified that Respondent is bound by the Web Commerce Communications Limited dba WebNic.cc; Gname.com Pte. Ltd. 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 October 26, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 15, 2022 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@amazonmapp.com, postmaster@amazonpphp.com. Also on October 26, 2022, 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, Forum transmitted to the parties a Notification of Respondent Default.
On November 17, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne as Panelist.
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 any response from Respondent.
Complainant requests that the Domain Names be transferred from Respondent to Complainant.
Preliminary Issue: Language of The Proceedings
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
Preliminary Issue: Multiple Respondents
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which has previously been found operating under several aliases in other cases decided under the UDRP. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
The Complainant has demonstrated that:
The “APP” download button in the upper righthand corner of <amazonpphp.com/m/login> linked to <app.amazonmapp.com>. (The tool tip in the bottom lefthand corner, displayed when the user’s mouse hovered over the APP button, showed the destination URL).
The Domain Names both used the same version of Complainant’s A Logo
as a favicon.
The Domain Names were registered within 8 days of each other.
The registrant for <amazonmapp.com>, xiansheng chen / chenxiansheng,
has been previously found to use multiple aliases in a prior and separate
UDRP case also involving the Complainant.
Accordingly noting all these linking facts the Panel finds that this Complaint may relate to both Domain Names because it is more likely than not that they are registered by the same domain name holder using aliases.
A. Complainant
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of registered trademarks for AMAZON and AMAZON.COM registered, inter alia, in the USA for online retail services with first use recorded as 1995. The marks are well known.
The Domain Names registered in 2022 are confusingly similar to the Complainant’s marks incorporating AMAZON in its entirety, adding only the letters “mapp” or “pphp” and the gTLD.com which is shared with AMAZON.COM. Consumers could interpret “mapp” as random letters or short for “mobile app” and are likely to mistake “pphp” for the common URL element “php”.
Respondent has no rights or legitimate interests in the Domain Names, is not commonly known by them and is not authorized by the Complainant.
<amazonphhp.com> resolves to a page entitled, “Amazon” which displays Complainant’s A plus smile logo in its masthead and as a favicon. The page promotes “The easiest and fastest way to make money online” and displays investing requirements to participate and corresponding commissions. A section entitled, “Partner” displays the Amazon logo and the logo of Complainant’s competitor Walmart. There are no disclaimers. The “Log in” button resolves to a separate page that displays the A plus smile logo and seeks user phone numbers and passwords. The “APP” download button in the upper left hand corner redirects to <app.amazonmapp.com> (using the other domain name in this case) where a download link intended to resemble an official app storelisting of the Complainant’s prominently displays Complainant’s A plus smile logo.
Respondent’s use of the Domain Names to impersonate Complainant, distribute malware, and/or conduct phishing or other fraudulent schemes is not a legitimate or bona fide use.
Furthermore, using Complainant’s AMAZON trademark in the Domain Names with Complainant’s A plus smile logo and Amazon logo at the resolving websites or apps, including under the heading “Partner,” is calculated and likely to confuse and mislead the public as to the source of Respondent’s websites, apps or services. This constitutes passing off and is also not a fair, nominative, or otherwise legitimate use.
Using Complainant’s AMAZON trademark to promote Complainant’s competitors, such as Walmart, is also not a legitimate or bona fide use.
When Respondent registered the Domain Names, Complainant’s AMAZON and AMAZON.COM trademarks were well-known and famous and since the landing pages for the Domain Names display Complainant’s A plus smile logo and Amazon logo, it is clear that Respondent registered the Domain Names with knowledge of Complainant’s rights and intended to create an association with Complainant and its products and services.
Also, Respondent has been previously been held in a UDRP case to have acted with knowledge of Complainant’s AMAZON trademark.
Respondent’s registration of the Domain Names with knowledge of Complainant’s rights is evidence of bad faith registration and use under Policy 4(a)(iii).
Furthermore, by incorporating Complainant’s famous AMAZON trademark in the Domain Names and prominently displaying Complainant’s A Logo and Amazon Logo at the website and/or app, Respondent creates the false impression that its website or app originate with or are associated with Complainant.
Respondent’s use of the Domain Names to impersonate Complainant, distribute malware, and/or conduct phishing or other fraudulent schemes is also evidence of bad faith.
Furthermore, by using domain names confusingly similar to Complainant’s AMAZON trademark to promote a phishing/investing scheme, Respondent has attempted to commercially benefit, unfairly and opportunistically, from the goodwill associated with Complainant’s trademarks, and this conduct of diversion shows bad faith registration and use pursuant to Policy 4(b)(iv).
Furthermore, using Complainant’s trademarks to promote Walmart and other retailers disrupts Complainant’s business and falls under Policy ¶ 4(b)(iii).
Furthermore, Respondent has used false and/or incomplete information in the WHOIS database and this is further evidence of bad faith (no street address for <amazonmapp.com> and “sansni” is not a city in Arizona).
Finally, Respondent is the subject of at least 10 adverse UDRP decisions, including one involving 14 domains targeting Complainant’s AMAZON trademark, which demonstrates a pattern of behaviour and is further evidence of bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of registered trademarks for AMAZON and AMAZON.COM registered, inter alia, in the USA for online retail services with first use recorded as 1995. The marks are well known.
The Domain Names registered in 2022 have been used for a web site or app which uses the Complainant’s AMAZON name and the Complainant’s logo(s) to suggest that they are officially connected with the Complainant. The services of one of the Complainant’s competitors are also promoted on the Respondent’s website. The Respondent has been the subject of a number of prior adverse decisions under the UDRP including registration of domain names including the Complainant’s marks. The Respondent has given false contact details to the WhoIS database.
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 Domain Names consist of the Complainant's AMAZON mark (which is registered, inter alia, in the USA for online retail services with first use recorded as 1995), ‘mapp’ meaning mobile app or phhp a misspelling of the technical abbreviation php, and a gTLD .com.
Previous panels have found confusing similarity when a respondent merely adds a generic abbreviation to a Complainant's mark. See PG&E Corp. v. Anderson, D2000-1264 (WIPO Nov. 22, 2000)(finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). Nor does adding a misspelling of a generic term. The addition of the generic abbreviations ‘mapp’ or a misspelling of the abbreviation ‘php’ does not prevent confusing similarity between the Domain Names and the Complainant’s mark which is still recognizable in the Domain Names. The Complainant’s AMAZON.COM mark is also still recognizable in the Domain Names.
A gTLD does not serve to distinguish a domain name from a Complainant’s mark. See Red Hat Inc v. Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark). The panel holds that the addition of the gTLD .com does not prevent confusing similarity between the Complainant’s AMAZON mark and the Domain Names.
Accordingly, the Panel holds that the Domain Names are confusingly similar to the Complainant’s registered marks.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorized the use of its marks. There is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Names. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 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).
The Domain Names have been used for commercial purposes which cannot be legitimate noncommercial fair use.
The Panel notes the allegation that the site may offer malware, but there is no evidence of this presented with this Complaint.
The Domain Names have been attached to an investment web site or retail app using the Complainant’s Amazon marks and logo(s) of the Complainant so that they appear to be officially connected with the Complainant. The Panel finds this use was deceptive. The website also promoted one of the Complainant’s competitors. This does not amount to the bona fide offering of goods and services. (See Am. Intl Group Inc v. Benjamin FA 944242 (Forum May 11, 2007) finding that the Respondent's use of a confusingly similar domain name to compete with the Complainant's business did not constitute a bona fide use of goods and services.) see also Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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).”).
The Respondent is purporting to be the Complainant with the likely purposes of phishing. Accordingly, the registration of the Domain Names appears to be part of a pattern of phishing conduct which is deceptive. As such it cannot amount to the bona fide offering of goods and services and is not a legitimate noncommercial or fair use. See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (“a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”).
The Respondent has not answered this Complaint or offered any explanation.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Names and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Adverse findings under the UDRP against the Respondent for similar activity targeting trade mark owners including the Complainant demonstrates a pattern of activity. See Fandango, LLC v. 21562719 Ont Ltd, FA1209001464081 (Forum Nov. 2, 2012) (“Respondent’s past conduct and UDRP history establishes a pattern of registered domain names in bad faith under Policy ¶ 4(b)(ii).”). This also shows prior actual knowledge of the Complainant’s rights and, accordingly, opportunistic bad faith.
In the opinion of the panelist the use made of the Domain Names in relation to the Respondent’s site and app was confusing and disruptive in that visitors to the site or app might reasonably believe they connected to or approved by the Complainant as investment or retail services were offered under the Complainant’s mark and logo(s) so as to appear to be officially connected with the Complainant. The site also promotes the services of a competitor of the Complainant suggesting a connection where there is none, again confusing and disruptive of the Complainant’s business. The fact that the Respondent is using the Complainant’s logos again shows that the Respondent is aware of the Complainant, its business, rights and services.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website or app by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site or app or services offered on them likely to disrupt the business of the Complainant. 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). Further the Respondent is passing itself off as the Complainant. See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding bad faith per Policy ¶¶ 4(b)(iii) and (iv) where the respondent used the disputed domain name to resolve to a website upon which the respondent passes off as the complainant and offers online cryptocurrency services in direct competition with the complainant’s business).
On consideration of why the Respondent would be mimicking the Complainant to offer investment or retail services it is more likely than not that the Respondent has registered the Domain Names for the purposes of phishing. Phishing conduct is evidence of bad faith registration and use within the Policy 4 (a)(iii). See Klabzuba Oil & Gas, Inc v. LAKHPAT SINGH BHANDARI, FA 1506001625750 (Forum July 17, 2015).
The Respondent has also given false contact details to the WhoIS database which is also an indication of bad faith. See Farouk Systems, Inc. v. Jack King / SLB, FA1505001618704 (Forum June 19, 2015) (finding bad faith registration and use pursuant to Policy ¶ 4(a)(iii) where the respondent had provided false contact information when registering the disputed domain name).
As such, the Panelist believes that the Complainant has made out its case that the Domain Names were registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(ii), (iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amazonmapp.com> and <amazonpphp.com> Domain Names be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: November 24, 2022
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page