DECISION

 

Amazon Technologies, Inc. v. Abraham Lincoln / Logozeal

Claim Number: FA2404002095199

PARTIES

Complainant is Amazon Technologies, Inc. ("Complainant"), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Abraham Lincoln / Logozeal ("Respondent"), New York, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <amazonpublishingus.com>, registered with NameCheap, Inc.

 

PANEL

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.

 

Sandra J. Franklin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on April 26, 2024; Forum received payment on April 26, 2024.

 

On April 26, 2024, NameCheap, Inc. confirmed by e-mail to Forum that the <amazonpublishingus.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 April 29, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 20, 2024 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@amazonpublishingus.com. Also on April 29, 2024, 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 May 21, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Sandra J. Franklin 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PRELIMINARY ISSUE: OTHER LEGAL PROCEEDINGS

Complainant reveals that it has served one or more third-party subpoenas calling for document production with respect to the disputed domain name. See Amazon.com, Inc., et al. v. Umer Wasim, et al., N.D. Cal. Case No. 3:23-vc-0558-TLT (the "Civil Action"). The Civil Action does not name or seek transfer for the disputed domain name and does not name Respondent in this proceeding as a defendant. Since the relief sought herein does not contradict or overlap with the Civil Action, the Panel determines that it will proceed to a decision in this UDRP case. See Swagelok Co. v. Elite Sales, Inc., FA1112001421137, (Forum Feb. 23, 2012) ("Since there is no contradiction between the remedy sought in the present proceeding – transfer of the disputed domain name to Complainant – and the order of transfer sought in the civil action, the Panel sees no reason to suspend or terminate the proceeding, and, in exercise of its discretion, decides to proceed to a decision"); see also Amazon Techs., Inc. v. Salem Merchants et al., FA240300208681 (Forum April 9, 2024) (proceeding to decision despite a third-party subpoena); see also WIPO Jurisprudential Overview 3.0 § 4.14.2 ("Panels generally issue a UDRP decision on the merits even in an overlapping court-UDRP proceeding scenario where, notwithstanding the fact that a UDRP decision would not be binding on the court, the relative expediency of the UDRP versus courts is seen as a benefit to the parties").

 

PARTIES' CONTENTIONS

A. Complainant

1.       Respondent's <amazonpublishingus.com> domain name is confusingly similar to Complainant's AMAZON mark.

 

2.       Respondent does not have any rights or legitimate interests in the <amazonpublishingus.com> domain name.

 

3.       Respondent registered and uses the <amazonpublishingus.com> domain name in bad faith.

 

B. Respondent did not file a Response.

 

FINDINGS

Complainant holds registrations for the AMAZON mark, including with the United States Patent and Trademark Office ("USPTO") (e.g. Reg. No. 5,281,455, registered September 5, 2017).

 

Respondent registered the <amazonpublishingus.com> domain name on June 23, 2023, and uses it to compete with Complainant.

 

DISCUSSION

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:

 

(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").

 

Identical and/or Confusingly Similar

The Panel finds that Complainant has rights in the AMAZON mark through registration with the USPTO. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) ("Complainant's ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).").

 

Respondent's <amazonpublishingus.com> domain name uses Complainant's AMAZON mark and adds the "publishingus", descriptive of Complainant's services, and the ".com" gTLD. These changes do not distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant's entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.) Therefore, the Panel finds that Respondent's <amazonpublishingus.com> domain name is confusingly similar to Complainant's AMAZON mark.

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also 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.").

 

Complainant contends that Respondent has no rights or legitimate interests in the <amazonpublishingus.com> domain name, as Respondent is not commonly known by the domain name. Complainant has not given Respondent permission to use its AMAZON mark. The WHOIS identifies "Abraham Lincoln / Logozeal" as the registrant of the disputed domain name.  Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name and thus has no rights under Policy ¶ 4(c)(ii). See Navistar International Corporation v. N Rahmany, FA 1620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). 

 

Complainant argues that Respondent fails to use the <amazonpublishingus.com> domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent is using the domain name to compete with Complainant. Using a disputed domain name to compete with a complainant is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Invesco Ltd. v. Premanshu Rana, FA 1733167 (Forum July 10, 2017) ("Use of a domain name to divert Internet users to a competing website is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.") Complainant provides screenshots showing that Respondent uses the disputed domain name to offer competing publishing services, using Complainant's mark and logo. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) or (iii).

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

Complainant claims that Respondent registered and uses the <amazonpublishingus.com> domain name in bad faith to disrupt Complainant's business by offering competing publishing services. The Panel agrees and finds bad faith disruption under Policy ¶ 4(b)(iii) and attraction for commercial gain under Policy ¶ 4(b)(iv).  See 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."); see also Microsoft Corp. v. Lorge, FA1103001380106 (Forum April 25, 2011) ("featuring of Complainant's competitors may cause some Internet users to purchase products from a competitor instead of from the Complainant," which disrupts Complainant's business and evidences bad faith registration and use under Policy ¶ 4(b)(iii)).

 

Complainant also claims that Respondent had knowledge of Complainant's rights in the AMAZON mark when it registered the disputed domain name. The Panel agrees, noting the fame of the AMAZON mark and Respondent's use of the disputed domain name to directly compete with Complainant, and finds further bad faith under Policy ¶ 4(a)(iii). See HDR Global Trading v. Garreth Griggs, FA 200400189660 (Forum April 28, 2020) ("Respondent had actual knowledge of Complainant's rights in the BITMEX mark when it registered the <xbitmex.com> mark as a domain name. Respondent's actual knowledge is evident from Respondent's use of the domain name to directly compete with Complainant as discussed above. Registering and using a confusingly similar domain name to directly compete with knowledge of Complainant's rights in such domain name in itself shows bad faith registration and use pursuant to Policy ¶ 4(a)(iii).")

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <amazonpublishingus.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Sandra J. Franklin, Panelist

Dated: May 22, 2024