Amazon.com, Inc. v amazonkw.com
Claim Number: FA0510000570133
Complainant is Amazon.com, Inc. (“Complainant”), represented by Kevin M. Hayes, of Klarquist Sparkman, LLP, One World Trade Center, Suite 1600, 121 SW Salmon Street, Portland, OR 97204. Respondent is amazonkw.com (“Respondent”), Main Strt, Kuwait, na 11111, KW.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <amazonkw.com>, registered with Bulkregister, 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 Panelists in this proceeding.
Joel M. Grossman, Chair, Hon. Tyrus Atkinson, Jr., and Barry Schreiber as Panelists.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 30, 2005; the National Arbitration Forum received a hard copy of the Complaint on October 3, 2005.
On October 6, 2005, Bulkregister, Llc. confirmed by e-mail to the National Arbitration Forum that the <amazonkw.com> domain name is registered with Bulkregister, Llc. and that Respondent is the current registrant of the name. Bulkregister, Llc. has verified that Respondent is bound by the Bulkregister, Llc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On October 6, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 26, 2005 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@amazonkw.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 3, 2006, pursuant to Complainant's request to have the dispute decided by a three-member Panel, the National Arbitration Forum appointed Joel M. Grossman, Chair, Hon. Tyrus Atkinson, Jr., and Barry Schreiber as Panelists.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <amazonkw.com> domain name is confusingly similar to Complainant’s AMAZON.COM mark.
2. Respondent does not have any rights or legitimate interests in the <amazonkw.com> domain name.
3. Respondent registered and used the <amazonkw.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
The Panel determines that
(1) the domain name <amazonkw.com> is identical to, or confusingly similar to, Complainant’s AMAZON.COM mark;
(2) Respondent has no rights or legitimate interests in the domain name; and
(3) the domain name was registered and is being used 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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Complainant asserts, and the Panel agrees, that the domain name <amazonkw.com> is confusingly similar to its mark, AMAZON.COM. The addition of the two letters “kw” do little to avoid confusion. See MFI UK Ltd v. Jones, D2003-0102( WIPO May 8, 2003) (finding that the domain name “mfiuk.com” is confusingly similar to the MFI mark.) Beyond normal confusion, it appears to the Panel that the confusion is intentional: the domain names appears to be an attempt to confuse the public into believing that Respondent is the authorized local Kuwait affiliate of the famous internet purveyor of books, music and electronics-- Amazon.com. The letters “kw” are used as the country code for Kuwait on the internet, and it is clear that inserting these letters inside the famous mark AMAZON.COM could in fact confuse potential consumers into thinking that this was the local Kuwaiti website of Amazon.com. Respondent has not submitted a response. The Panel finds that the domain name <amazonkw.com> is confusingly similar to the Complainant’s AMAZON.COM mark..
The Panel notes that under UDRP precedent, once a complainant makes a prima facie case in support of its allegations, the burden shifts to the respondent to show that it has rights or legitimate interests in the domain name. See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21 2000). Since Respondent has not submitted a response, it clearly cannot meet its burden. Moreover, Respondent did not register its name until August, 2002, long after Complainant registered its mark in 1997. Given the fame of Complainant’s mark, it would be highly unlikely that Respondent was unaware of the name. Respondent has not submitted any evidence that it was commonly known by the name “amazonkw.com” prior to the registration. Finally, because it appears to the Panel that Respondent is intentionally attempting to trade on Complainant’s name, by confusing the public into believing that it is the local Kuwaiti website of the famous Amazon.com, the Panel concludes that Respondent has no rights or legitimate interests in the domain name.
The Panel finds that Respondent has registered and is using the domain name in bad faith in light of the fact that it is using a confusingly similar domain name to divert customers from Complainant’s site to its own. The Panel notes that just as Complainant offers electronics, including computers, for sale online, so too Respondent’s website appears to offer computer products for sale online. This is a classic case of bad faith. See S. Exposure v. S. Exposure, Inc. FA 94864 (Nat. Arb. Forum July 18, 2000). The Panel also notes that prior panels have reached the same result under very similar facts. In Amazon.com, Inc. v. Holy Land Mall, D2002-1083 (WIPO Feb. 27, 2003) the respondent registered the domain name “amazonisrael.com,” and in Amazon.com, Inc. v. Rayaneh Net, FA 196217 (Nat. Arb. Forum Oct. 28, 2003) the respondent registered the domain name “amazoniran.com.” In both instances, like the Respondent here, the respondents in those cases attempted to pass themselves off as the local branch of Amazon.com, in one instance in Israel, and in the other in Iran. In both prior cases the panels determined that the domain names had been registered and were being used in bad faith. This Panel agrees, and holds that Respondent in this case registered and is using the domain name in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED
Accordingly, it is Ordered that the <amazonkw.com> domain name be TRANSFERRED from Respondent to Complainant.
Joel M. Grossman, Chair, Hon. Tyrus Atkinson, Jr., and Barry Schreiber, Panelists
Dated: November 16, 2005
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