Amazon Technologies, Inc. v. Ready Real Estate Video / None
Claim Number: FA2308002056438
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Ready Real Estate Video / None (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <amazonfromhomejobs.com>, <amazonjobsearch.com> and <wholefoodsgiftcard.com>, all registered with Launchpad.com Inc.
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 August 7, 2023; Forum received payment on August 7, 2023.
On August 8, 2023, Launchpad.com Inc. confirmed by e-mail to Forum that the <amazonjobsearch.com>, <amazonfromhomejobs.com> and <wholefoodsgiftcard.com> domain names are registered with Launchpad.com Inc. and that Respondent is the current registrant of the names. Launchpad.com Inc. has verified that Respondent is bound by the Launchpad.com Inc. 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 August 9, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 29, 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 the attention of postmaster@amazonjobsearch.com, postmaster@wholefoodsgiftcard.com and postmaster@amazonfromhomejobs.com. Also on August 9, 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 30, 2023, 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 any response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant is a leading Internet retailer offering a wide variety of products and services, including gift cards for its Whole Foods Market business.
Complainant regularly posts employment opportunities for its businesses at its proprietary website found at <amazon.jobs>.
Complainant holds a registration for the service mark AMAZON.COM, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 2,167,345, registered June 23, 1998, and renewed most recently as of August 4, 2018.
Complainant also holds a registration for the trademark and service mark WHOLE FOODS, on file with the USPTO as Registry No. 6,289,840, registered March 9, 2021.
Respondent registered the domain name <amazonjobsearch.com> on February 15, 2023.
Respondent registered the domain name <amazonfromhomejobs.com> on October 29, 2022.
Respondent registered the domain name <wholefoodsgiftcard.com> on June 5, 2023.
Each of the domain names <amazonfromhomejobs.com> and <amazonjobsearch.com> is confusingly similar to Complainant’s service mark AMAZON.COM.
The domain name <wholefoodsgiftcard.com> is confusingly similar to Complainant’s trademark and service mark WHOLE FOODS.
Respondent is not using any of the domain names in connection with either a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Respondent is not an authorized vendor, supplier or distributor of Complainant’s goods and services.
Respondent is not licensed by Complainant to use any of Complainant’s trademarks or service marks.
Respondent is not affiliated with Complainant in any way.
Respondent has not been commonly known by any of the domain names.
Respondent has neither any rights to nor any legitimate interests in any of the domain names.
The landing pages for the domain names <amazonfromhomejobs.com> and <amazonjobsearch.com> prominently display Complainant’s Amazon logo and purport to offer access to “Live Chat/Email Customer Support Specialists.”
The landing page for the <wholefoodsgiftcard.com> domain name purports to offer a “$750 WHOLE FOODS GIFT CARD AT NO COST.”
Buttons displayed on the landing pages for the domain names <amazonfromhomejobs.com> and <amazonjobsearch.com> link to third party websites purporting to offer job searches, surveys for rewards and sponsored deals, as well as job listings for employers other than Complainant.
Buttons displayed on the landing page for the <wholefoodsgiftcard.com> domain name purport to offer surveys for rewards and sponsored deals.
Respondent’s employment of the domain names misleads Internet users.
Respondent seeks to profit financially from its use of the domain names.
Respondent knew of Complainant and its rights in the AMAZON.COM and WHOLE FOODS marks when it registered the domain names.
Registered has both registered and now uses each of the domain names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain names registered by Respondent are confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of any of the domain names; and
(3) Each of the domain names has been 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 and 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
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.
In view of Respondent's failure to submit a response, the Panel shall, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this administrative proceeding on the basis of Complainant's undisputed representations and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it considers appropriate. The Panel is entitled to accept all reasonable allegations set out in the 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.”
By virtue of its registration of the AMAZON.COM service mark and WHOLE FOODS service mark and trademark with a national trademark authority, the USPTO, Complainant has established that it has rights in those marks 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, Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum August 4, 2017):
Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.
This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here Canada). See, for example, W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum August 24, 2010):
[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 <amazonjobsearch.com> and <amazonfromhomejobs.com> domain names are each confusingly similar to Complainant’s AMAZON.COM service mark, while Respondent’s <wholefoodsgiftcard.com> domain name is confusingly similar to Complainant’s WHOLE FOODS trademark and service mark. The former domain names incorporate the AMAZON.COM mark in its entirety, with only the addition of the phrase “job search” in one of them and the phrase "from home jobs” in the other. Both of these expressions relate directly to an aspect of Complainant’s business. The latter domain name incorporates Complainant’s WHOLE FOODS mark in its entirety, with only the deletion of the space between its terms and the addition of the phrase “gift card,” which relates to another aspect of Complainant’s business, plus the generic Top Level Domain (“gTLD”) “.com.” None of these alterations to the marks, made in forming the domain names, saves them from the realm of confusing similarity under the standards of the Policy. See, for example, Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding that adding to the mark of a UDRP complainant a gTLD and the generic term “finance,” which described that complainant’s financial services business conducted under the mark, did not distinguish the resulting domain name from the mark under Policy ¶ 4(a)(i)).
See also Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Forum September 27, 2002):
[I]t is a well-established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.
This is because every domain name requires a gTLD or other TLD.
As to Respondent’s deletion of the space between the terms of Complainant’s WHOLE FOODS mark in creating one of the domain names, that alteration of the mark is of no moment in our analysis because domain name syntax does not permit the use of blank spaces. See, for example, Gurney’s Inn Resort & Spa Ltd. v. Whitney, FA 140656 (Forum February 19, 2003):
[S]paces between words are not significant in determining the similarity of a domain name and a mark because … spaces are not reproducible in a domain name.
Policy ¶ 4(a)(ii) requires that Complainant make out a prima facie showing that Respondent has neither rights to nor legitimate interests in the domain names <amazonfromhomejobs.com>, <amazonjobsearch.com> and <wholefoodsgiftcard.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 (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 (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 names. 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 names 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 any of the challenged domain names, and that Complainant has not licensed Respondent to use either of the marks AMAZON.COM and WHOLE FOODS. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Ready Real Estate Video,” which does not resemble any of the domain names. On this record, we conclude that Respondent has not been commonly known by the disputed domain names so as to have acquired rights to or legitimate interests in any of them 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:
1. Landing pages for the <amazonfromhomejobs.com> and <amazonjobsearch.com> domain names prominently display Complainant’s Amazon logo and purport to offer access to “Live Chat/Email Customer Support Specialists,” while the landing page for the <wholefoodsgiftcard.com> domain name purports to offer a “$750 WHOLE FOODS GIFT CARD AT NO COST;”
2. Buttons on the landing pages resolving from both of the domain names <amazonfromhomejobs.com> and <amazonjobsearch.com> link to third party websites purporting to offer job searches, surveys for rewards and sponsored deals, as well as job listings for employers other than Complainant, while buttons displayed on the landing page for the domain name <wholefoodsgiftcard.com> purport to offer surveys for rewards and sponsored deals; and
3. Respondent seeks profit from its use of the domain names.
These uses are neither bona fide offerings of goods or services by means of the domain names under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of them under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain names as provided in those subsections of the Policy. See, for example, Amazon Technologies, Inc. v. klnern, FA1980420 (Forum February 15, 2021):
The use of a confusingly similar domain name to pass off as or impersonate a [UDRP] Complainant does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use of the [domain] name under Policy ¶¶ 4(c)(i) or (iii).
See also Target Brands, Inc. v. Henderson, FA1408381 (Forum October 24, 2011):
Respondent uses … [a challenged domain name] to enlist Internet users in Respondent’s survey program and promises Complainant’s gift cards in return for joining…. This use is not a bona fide offering of goods or services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii).
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 employment of the three contested domain names, each of which we have found to be confusingly similar to one or the other of Complainant’s AMAZON.COM and WHOLE FOODS marks, is an attempt by Respondent to profit from the confusion thus caused among unsuspecting internet users as to the possibility of Complainant’s affiliation with Respondent. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in registering and using each of the domain names. See, for example, Diamond Mattress Co., Inc. v. Diamond Mattress, D2010-1637 (WIPO November 23, 2010):
The Respondent’s website appears to have been intentionally designed to capture the look and feel of the Complainant’s website,…. [T]he Panel concludes that the Respondent registered and has used the … domain names in bad faith under paragraph 4(b)(iv) of the Policy, to intentionally attract Internet users to its website for commercial gain, by creating a likelihood of confusion with … Complainant’s mark ….
See also Homer TLC, Inc. v. Wang, FA1007001336037 (Forum August 23, 2010):
Respondent’s confusingly similar disputed domain name purports to offer gift cards to Complainant’s retail stores in exchange for Internet users’ feedback about Complainant. The Panel finds that Internet users are likely to believe that such activities are sponsored by or affiliated with Complainant and is evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv).
The Panel thus finds that Complainant has 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, therefore, Ordered that each and all of the domain names <wholefoodsgiftcard.com>, <amazonfromhomejobs.com> and <amazonjobsearch.com> be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: September 11, 2023
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