Amazon Technologies, Inc. v. julan pirali
Claim Number: FA2306002048924
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is julan pirali (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <amazonwallet.sale>, <amazonwallets.co>, and <amzwallet.sale>, registered with Eranet International Limited.
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.
Charles A. Kuechenmeister, Panelist.
Complainant submitted a Complaint to Forum electronically on June 14, 2023; Forum received payment on June 14, 2023.
On June 20, 2023, Eranet International Limited confirmed by e-mail to Forum that the <amazonwallet.sale>, <amazonwallets.co>, and <amzwallet.sale> domain names (the Domain Names) are registered with Eranet International Limited and that Respondent is the current registrant of the names. Eranet International Limited has verified that Respondent is bound by the Eranet International Limited 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 20, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint setting a deadline of July 10, 2023 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@amazonwallet.sale, postmaster@amazonwallets.co, postmaster@amzwallet.sale. Also on June 20, 2023, 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 July 19, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Charles A. Kuechenmeister 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 a Response from Respondent.
Complainant requests that the Domain Names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE DOMAIN NAMES
The Complaint relates to three Domain Names. Paragraph 3(c) of 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 WHOIS information furnished to Forum by the registrar lists “julan priali,” of Brooklyn, New York, as the registrant of all three Domain Names. The websites resolving from all three Domain Names are virtually identical to each other in general appearance and content, displaying virtually the same content and using Complainant’s mark in exactly the same manner (screenshots submitted as Complaint Exhibits L, M and N). All three Domain Names were registered with the same registrar within sixty days of each other. On this evidence, the Panel finds that the Domain Names are registered to the same person or entity or are under common control and will proceed as to all of them. Caterpillar v. Arendt, FA1805001789701 (Forum July 2, 2018), (“The Panel finds that the domain names are under common control because the three domain names are constructed in the same manner, were registered on the same date with the same registrar, have been used in the same way, and use Cloudflare servers. Also, the registrant used the same privacy service for all three domain names. These elements are sufficient to find that the domain names were registered by the same domain name holder.”).
A. Complainant
Complainant offers a wide variety of products and services including financial services like the virtual currency Amazon Coins, and Amazon credit card and payment services. It has rights in the AMAZON and AMZ marks based upon its registration of those marks with the United States Patent and Trademark Office (“USPTO”) and the Registry of Trademarks of the Patent Office of the United Kingdom (UK). Respondent’s <amazonwallet.sale>, <amazonwallets.co>, and <amzwallet.sale> Domain Names are confusingly similar to Complainant’s mark as they contain the AMZ or AMAZON marks in their entirety, merely adding the descriptive and/or generic terms “wallet” or “wallets” and the generic or country code top-level domains (“gTLD or ccTLD”) “.sale,” or “.co.”.
Respondent has no rights or legitimate interests in the Domain Names. Respondent is not using the Domain Names in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use but instead passes off as Complainant in furtherance of a fraudulent cryptocurrency scheme, Respondent is not affiliated with Complainant, is not licensed or authorized to use Complainant’s AMZ or AMAZON marks, and is not commonly known by the Domain Names.
Responded registered and uses the Domain Names in bad faith. It registered and uses the Domain Names with actual knowledge of Complainant’s rights in the AMZ or AMAZON marks, it attempts for commercial gain to attract Internet users to its websites by creating confusion with Complainant’s marks as to the source, sponsorship, endorsement or affiliation of those websites, and is impersonating Complainant to promote and facilitate a fraudulent cryptocurrency scheme.
B. Respondent
Respondent did not submit a Response in this proceeding.
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 a Complainant to prove each of the following three elements to obtain an order cancelling or transferring a domain name:
(1) the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(2) the 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, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules the Panel will decide this administrative proceeding on the basis of Complainant's undisputed representations 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 as true unless the evidence is clearly contradictory. Nevertheless, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. 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”), WIPO Overview 3.0, at ¶ 4.3 (“In cases involving wholly unsupported and conclusory allegations advanced by the complainant, . . . panels may find that—despite a respondent’s default—a complainant has failed to prove its case.”).
The Panel finds as follows with respect to the matters at issue in this proceeding:
The AMAZON mark was registered to Complainant with the USPTO) (Reg. No. 2,078,496) on July 15, 1997, and the AMZ mark was registered to Complainant with the Trademark Registry of the UK Patent Office (Reg. No. UK00003731802) on March 18, 2022 (USPTO and UK registration certificates included in Complaint Exhibit J). Complainant’s registration of its marks with these governmental trademark authorities establishes its rights in those marks for the purposes of Policy ¶ 4(a)(i). Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (“Complainant has rights in the GMAIL mark based upon its registration of the mark with numerous trademark agencies around the world.”), Bloomberg Finance L.P. v. Jimmy Yau, FA 1764034 (Forum Jan. 25, 2018) (“The Panel finds that complainant has rights in BLOOMBERG mark under Policy ¶ 4(a)(i) based upon its registration with multiple trademark agencies, including the USPTO.”).
Respondent’s <amazonwallet.sale>, <amazonwallets.co>, and <amzwallet.sale> Domain Names are confusingly similar to Complainant’s mark as they fully incorporate the AMZ or AMAZON marks, merely adding the descriptive or generic terms “wallet” or “wallets” and the “.sale” or “.co” gTLDs or ccTLD. These changes do not distinguish the Domain Names from Complainant’s marks for the purposes of Policy ¶ 4(a)(i). Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”), MTD Products Inc v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”). The WIPO Overview 3.0, at ¶ 1.7, states that the test for confusing similarity “typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the domain name.” Notwithstanding the changes described above, Complainant’s mark is clearly recognizable within the Domain Names.
For the reasons set forth above, the Panel finds that the Domain Names are identical or confusingly similar to the AMAZON and AMZ marks, in which Complainant has substantial and demonstrated rights.
If a complainant makes a prima facie case that the respondent lacks rights or legitimate interests in the domain name under Policy ¶ 4(a)(ii), the burden of production shifts to respondent to come forward with evidence that it has rights or legitimate interests in it. Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”). If a respondent fails to come forward with such evidence, the complainant’s prima facie evidence will be sufficient to establish that respondent lacks such rights or legitimate interests. If the respondent does come forward with such evidence, the Panel must assess the evidence in its entirety. At all times, the burden of proof remains on the complainant. WIPO Overview 3.0, at ¶ 2.1.
Policy ¶ 4(c) lists the following three nonexclusive circumstances, any one of which if proven can demonstrate a respondent’s rights or legitimate interests in a domain name for the purposes of Policy ¶ 4(a)(ii):
(i) Before any notice to the respondent of the dispute, the respondent’s 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;
(ii) The respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or
(iii) The respondent is making a legitimate noncommercial 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 asserts that Respondent has no rights or legitimate interests in the Domain Names because (i) it is not using the Domain Names in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use but instead passes off as Complainant in furtherance of a fraudulent cryptocurrency scheme, (ii) it is not affiliated with Complainant and is not licensed or authorized to use Complainant’s AMZ or AMAZON marks, and (iii) it is not commonly known by the Domain Names. These allegations are addressed as follows:
Complaint Exhibits L, M and N consist of screenshots of the websites resolving from the Domain Names. They are very nearly identical to each other in appearance and general layout, impersonate Complainant and promote a fake “Amazon Crypto” “AMZ” currency. They display Complainant’s Amazon Logos in the masthead and elsewhere and there are no disclaimers. The copyright legends attribute authorship of these websites to Complainant’s parent entity Amazon.com, Inc. “Copyright © 2023, Amazon.com, Inc. or its affiliates.” The footers falsely state, “Amazon Crypto, Amazonwallet, AMZ token are registered trademarks by Amazon.com, Inc.” Respondent is clearly passing off as Complainant and competing with Complainant’s virtual currency and credit card and payment services. Passing off as a complainant and offering a complainant’s services does not qualify as a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i), or as a legitimate noncommercial or fair use within the meaning of Policy ¶ 4(c)(iii). Netflix, Inc. v. Irpan Panjul / 3corp.inc, FA 1741976 (Forum Aug. 22, 2017) (“The usage of Complainant’s NETFLIX mark which has a significant reputation in relation to audio visual services for unauthorised audio visual material is not fair as the site does not make it clear that there is no commercial connection with Complainant and this amounts to passing off . . . As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name.”), Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Complainant states that Respondent is not affiliated with it and that it has never licensed or authorized Respondent to use its marks. Complainant has specific competence to make this statement, and it is unchallenged by any evidence before the Panel. In the absence of evidence that a respondent is authorized to use a complainant’s mark in a domain name or that a respondent is commonly known by the disputed domain name, the respondent may be presumed to lack rights or legitimate interests in the domain name. IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register Domain Name featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name), Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) (”Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.”).
The WHOIS information furnished to Forum by the registrar lists “julan pirali” as the registrant of the Domain Names. This name bears no resemblance to the Domain Names. Evidence could, of course, in a given case demonstrate that the respondent is commonly known by a domain name different from the name in which it registered the domain name, e.g., the case of a domain name incorporating the brand name of a specific product offered by and associated with the respondent. In the absence of any such evidence, however, UDRP panels have consistently held that WHOIS evidence of a registrant name which does not correspond with the domain name is sufficient to prove that the respondent is not commonly known by the domain name. Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed Domain Name when the identifying information provided by WHOIS was unrelated to the Domain Name or respondent’s use of the same), 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). The Panel is satisfied that Respondent has not been commonly known by the Domain Names for the purposes of Policy ¶ 4(c)(ii).
Complainant has made its prima facie case. On the evidence presented, and in the absence of any evidence from Respondent, the Panel finds that Respondent has no rights or legitimate interests in the Domain Names.
Policy ¶ 4(b) sets forth a nonexclusive list of four circumstances, any one of which if proven would be evidence of bad faith use and registration of a domain name. They are as follows:
(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 which 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 the 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, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s web site 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 web site or location or of a product of service on the respondent ‘s web site or location.
The evidence of Respondent’s conduct discussed above in the rights or legitimate interests analysis also supports a finding of bad faith registration and use, based upon the foregoing grounds articulated in the Policy and upon additional grounds adopted by UDRP panels over the years. First, by passing off as Complainant and without authorization purporting to sell some of Complainant’s financial services, Respondent is clearly using the confusingly similar Domain Names to attract, for commercial gain, Internet users to its websites by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of its websites. The evidence does not disclose whether Respondent is actually selling the services advertised on its websites or fraudulently representing that it does, collecting money from the customer and then not delivering the services. Regardless of which scenario is present here, Respondent’s conduct fits squarely within the circumstances described in Policy ¶ 4(b)(iv) and is manifest evidence of bad faith registration and use. 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).”).
As discussed above, Respondent is using the Domain Names to pass off as Complainant. This does not fit precisely within any of the scenarios listed in Policy ¶ 4(b) but that paragraph recognizes that mischief can manifest in many different forms and takes an open-ended approach to bad faith, listing some examples without attempting to enumerate all its varieties. Worldcom Exchange, Inc. v. Wei.com, Inc., WIPO Case No. D-2004-0955. The non-exclusive nature of Policy ¶ 4(b) allows for consideration of additional factors in an analysis for bad faith, and passing off as a complainant, in and of itself, is evidence of bad faith. Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant or is otherwise affiliated or associated with Complainant.”).
For the reasons above set forth, the Panel finds that Respondent registered and is using the Domain Names in bad faith within the meaning of Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amazonwallet.sale>, <amazonwallets.co>, and <amzwallet.sale> Domain Names be TRANSFERRED from Respondent to Complainant.
Charles A. Kuechenmeister, Panelist
Dated: July 21, 2023
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