Amazon Technologies, Inc. v. Denise MIRCEA \u4e9a\u8679 \u6c6a / Ya Hong Wang / Ting Yuan / \u606d\u8000 \u5f6d / Ze La Li / Gong Yao Peng
Claim Number: FA2307002052452
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Denise MIRCEA \u4e9a\u8679 \u6c6a / Ya Hong Wang / Ting Yuan / \u606d\u8000 \u5f6d / Ze La Li / Gong Yao Peng (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <10aws.com>, <11aws.com>, <12aws.com>, <13aws.com>, <14aws.com>, <15aws.com>, <16aws.com>, <17aws.com>, <18aws.com>, <19aws.com>, <20aws.com>, <21aws.com>, <30aws.com>, <31aws.com>, <32aws.com>, <33aws.com>, <34aws.com>, <35aws.com>, <36aws.com>, <37aws.com>, <38aws.com>, <39aws.com>, <40aws.com>, <41aws.com>, <42aws.com>, <43aws.com>, <44aws.com>, and <45aws.com> (collectively “Domain Names”), registered with GoDaddy.com, LLC.
The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.
Nicholas J.T. Smith as Panelist.
Complainant submitted a Complaint to Forum electronically on July 10, 2023; Forum received payment on July 10, 2023.
On July 11, 2023, GoDaddy.com, LLC confirmed by e-mail to Forum that the <10aws.com>, <11aws.com>, <12aws.com>, <13aws.com>, <14aws.com>, <15aws.com>, <16aws.com>, <17aws.com>, <18aws.com>, <19aws.com>, <20aws.com>, <21aws.com>, <30aws.com>, <31aws.com>, <32aws.com>, <33aws.com>, <34aws.com>, <35aws.com>, <36aws.com>, <37aws.com>, <38aws.com>, <39aws.com>, <40aws.com>, <41aws.com>, <42aws.com>, <43aws.com>, <44aws.com>, and <45aws.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 July 13, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 2, 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@10aws.com, postmaster@11aws.com, postmaster@12aws.com, postmaster@13aws.com, postmaster@14aws.com, postmaster@15aws.com, postmaster@16aws.com, postmaster@17aws.com, postmaster@18aws.com, postmaster@19aws.com, postmaster@20aws.com, postmaster@21aws.com, postmaster@30aws.com, postmaster@31aws.com, postmaster@32aws.com, postmaster@33aws.com, postmaster@34aws.com, postmaster@35aws.com, postmaster@36aws.com, postmaster@37aws.com, postmaster@38aws.com, postmaster@39aws.com, postmaster@40aws.com, postmaster@41aws.com, postmaster@42aws.com, postmaster@43aws.com, postmaster@44aws.com, and postmaster@45aws.com. Also on July 13, 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 August 7, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Nicholas J.T. Smith 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: Multiple Respondents
Complainant contends that the registrants for the Domain Names are related because: 1) the Domain Names are all similar variants of Complainant’s AWS mark 2) The Domain Names were registered with the same Registrar and within a 15-day period of one another 3) the Domain Names all resolve or have resolved what are very similar websites (the “Respondent’s Website”). In essence each of these domain names leads to a website that reproduces Complainant’s AWS mark and a logo very similar to Complainant’s AWS logo, purports to promote a crowdsourcing task/payment platform by reference to Complainant’s AWS platform and makes reference to Complainant’s competitors; and 4) The various named registrants of the Domain Names share numerous contact details.
This evidence, in the Panel’s opinion, strongly suggests that the Domain Names are owned/controlled by a single Respondent; were the named Respondents unrelated, it would be unlikely that a significant number of unconnected entities would register very similar domain names with the same registrar during a 15-day time period, with all of them pointing to the Respondent’s Website.
In light of these contentions, which none of the identified Respondents deny, the Panel concludes that, on the balance of probabilities, the Domain Names are commonly owned/controlled by a single Respondent who is using multiple aliases. Hereafter the single Respondent will be referred to as “Respondent” in this Decision.
A. Complainant
Complainant, Amazon Technologies Inc., is one of the world’s leading retailers and offers IT infrastructure services under the AWS mark. Complainant has rights in the AWS mark through Complainant’s registration of the mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 5,676,725 registered on February 12, 2019). The Domain Names are confusingly similar to Complainant’s AWS mark because they each incorporate Complainant’s mark in its entirety, simply adding two-digit numbers and the generic top-level domain (“gTLD”) “.com”.
Respondent does not have rights or legitimate interests in the Domain Names. Respondent is not licensed or authorized to use Complainant’s AWS mark and is not commonly known by the Domain Names. Additionally, Respondent does not use the Domain Names for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the Domain Names to pass off as Complainant to offer or advertise competing services.
Respondent registered and uses the Domain Names in bad faith. Respondent uses the Domain Names to pass off as Complainant and to promote competing businesses. Additionally, Respondent had actual knowledge of Complainant’s rights to the AWS mark prior to registering the Domain Names based on the content of the Respondent’s Website, which reproduces a logo that is very similar to Complainant’s logo.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the AWS mark. Each of the Domain Names is confusingly similar to Complainant’s AWS mark. Complainant has established that Respondent lacks rights or legitimate interests in the Domain Names and that Respondent registered and has used the Domain Names 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:
(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”).
Complainant has rights in the AWS mark based upon registration of the mark with the USPTO (e.g. Reg. No. 5,676,725 registered on February 12, 2019). Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Target Brands, Inc. v. jennifer beyer, FA 1738027 (Forum July 31, 2017) ("Complainant has rights in its TARGET service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office (“USPTO”).).
The Panel finds that each of the Domain Names is confusingly similar to the AWS mark as they each incorporate the entire AWS mark while adding a two-digit number and a gTLD. Adding a generic term such as a number to a gTLD to a mark fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II v. Svensson Viljae, FA 1784650 (Forum June 1, 2018) (finding confusing similarity where “[t]he disputed domain name <skechers-outlet.com> adds a hyphen and the generic term ‘outlet’ to Complainant's registered SKECHERS mark, and appends the ‘.com’ top-level domain.”); see also 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 Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Names. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Names under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first 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, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”). The Panel holds that Complainant has made out a prima facie case.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Names as Respondent is not commonly known by the Domain Names, nor has Complainant authorized Respondent to use the AWS mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA 1613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA 1621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). The WHOIS information of record lists “Denise MIRCEA \u4e9a\u8679 \u6c6a / Ya Hong Wang / Ting Yuan / \u606d\u8000 \u5f6d / Ze La Li / Gong Yao Peng” as the registrants of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Names in accordance with Policy ¶ 4(c)(ii).
The Domain Names resolve or have resolved to the Respondent’s Website which, through the reproduction of the AWS Mark, a logo strikingly similar to Complainant’s AWS logo and reference to Complainant more generally, passes itself off as an official website of the Complainant for the purpose off offering what is described as a crowdsourcing/task payment service connected to the Complainant’s AWS platform. The use of a confusingly similar domain name to pass off as or impersonate a Complainant does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use of the name under Policy ¶¶ 4(c)(i) or (iii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds that, at the time Respondent registered the Domain Names, May-June 2023, Respondent had actual knowledge of Complainant’s AWS mark since the Respondent is using the Domain Names to pass itself off as the Complainant through a website that impersonates Complainant by using a logo strikingly similar to Complainant’s AWS logo and making reference to Complainant’s AWS platform. In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and uses the Domain Names in bad faith as Respondent uses the Domain Names to redirect Internet users to Respondent’s own website where Respondent passes off as Complainant. Using a confusingly similar domain name to trade upon the goodwill of a complainant can evince bad faith under Policy ¶ 4(b)(iv). See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA 1612750 (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).”). See also Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) 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.”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <10aws.com>, <11aws.com>, <12aws.com>, <13aws.com>, <14aws.com>, <15aws.com>, <16aws.com>, <17aws.com>, <18aws.com>, <19aws.com>, <20aws.com>, <21aws.com>, <30aws.com>, <31aws.com>, <32aws.com>, <33aws.com>, <34aws.com>, <35aws.com>, <36aws.com>, <37aws.com>, <38aws.com>, <39aws.com>, <40aws.com>, <41aws.com>, <42aws.com>, <43aws.com>, <44aws.com>, and <45aws.com> domain names be TRANSFERRED from Respondent to Complainant.
Nicholas J.T. Smith, Panelist
Dated: August 8, 2023
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