Amazon Technologies, Inc. v. Hari Kishan / Amazon Web Solution
Claim Number: FA1704001726257
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Hari Kishan / Amazon Web Solution (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amazonwebsolutions.com>, (‘the Domain Name’) registered with ZNet Technologies Pvt Ltd.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne of Palmer Biggs IP as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 11, 2017; the Forum received payment on April 11, 2017.
On April 14, 2017, ZNet Technologies Pvt Ltd. confirmed by e-mail to the Forum that the <amazonwebsolutions.com> domain name is registered with ZNet Technologies Pvt Ltd. and that Respondent is the current registrant of the name. ZNet Technologies Pvt Ltd. has verified that Respondent is bound by the ZNet Technologies Pvt Ltd. 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 14, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 4, 2017 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 email@example.com. Also on April 14, 2017, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On May 12, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs IP as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the 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.
Complainant’s submissions can be summarized as follows:
Since 1995 Complainant has continuously used the AMAZON and the AMAZON.COM trade marks in connection with its products and services. The AMAZON marks are famous and one of the most well known and recognizable brands globally.
For more than a decade Amazon Web Services has been the world’s most comprehensive and broadly adopted cloud services platform. AMAZON, AMAZON.COM and AMAZON WEB SERVICES are registered around the world including in the USA and India. Amazon’s services under these marks include database, domain registration, e commerce, payment, web hosting and web development solutions including web developer goods and certifications.
The Domain Name is confusingly similar to the AMAZON, AMAZON.COM and AMAZON WEB SERVICES marks. Adding or substituting in ‘web solutions’ directly describes Complainant’s web related services and adding this or .com does not distinguish the Domain Name from Complainant’s marks.
Respondent has not used the Domain Name in connection with a bona fide offering of goods and services. Respondent is not making a non commercial fair use of the Domain Name. Respondent has never been legitimately known by Complainant’s marks. Respondent is not licensed or authorised to use Complainant’s marks. Respondent has no rights or legitimate interests in the Domain Name.
The Domain Name is directed to an AMAZON branded site that offers web development, ecommerce, database, domain registration, payment gateway and web hosting services all of which are provided or certified by Complainant under its marks. Respondent adopts Complainant’s famous AMAZON mark as its sole identity and brand, making no effort to distinguish itself from Complainant or Complainant’s services. Using a well known mark to deliver competing services is not a bona fide or legitimate use.
Respondent registered the Domain Name in bad faith. The use of the mark demonstrates Respondent knew about Complainant and its business. Registration with actual knowledge is bad faith registration and use under 4 (a)(iii).The Domain Name was registered more than five years after Complainant launched Amazon Web Services. Respondent has attempted to commercially benefit unfairly and opportunistically by conduct of diversion showing bad faith registration and use pursuant to Policy 4 (b)(iv) and this is disruptive amounting to bad faith under 4 (b)(iii). Further, until Complainant contacted Respondent, Respondent operated its business under a privacy shield, also reflecting bad faith.
Respondent failed to submit a Response in this proceeding.
Complainant owns the trade marks AMAZON, AMAZON.COM and AMAZON WEB SERVICES with first use for web services recorded as 2005.
The Domain Name registered in 2010 has been connected to a site using the trading name ‘Amazon Web Solutions’ to offer competing web related services.
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 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 (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.”).
Identical or Confusingly Similar
The Domain Name consists of Complainant's AMAZON mark which is registered, inter alia, in the USA (with first use in commerce by way of AMAZON WEB SERVICES for web services specifically recorded as 2005), the generic term ‘web services’ and the gTLD .com. Previous panels have found confusing similarity when a respondent merely adds a generic term to a Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000)(finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underling mark held by Complainant). The Panel agrees that the addition of the generic term ‘web solutions’ to Complainant's mark does not distinguish the Domain Name from Complainant's trade mark pursuant to the Policy. In fact it may add to confusion as Complainant offers web services.
The gTLD .com does not serve to distinguish the Domain Name from the AMAZON mark, which is the distinctive component of the Domain Name. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose to a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
Complainant has not authorised the use of its mark. Respondent uses Complainant’s famous name. Respondent has not answered this Complaint and there is no evidence or reason to suggest Respondent is, in fact. commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 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).
Complainant contends that the site is set up for commercial benefit to compete with Complainant using the latter's intellectual property rights. Respondent is using the site in competition with Complainant to offer competing web services. It does not make it clear that there is no commercial connection with Complainant, whose use of the famous mark AMAZON, preceded Respondent’s use. This use is confusing. As such it cannot amount to the bona fide offering of goods and services. (See General Motors LLC v MIKE LEE, FA 1659965 (Forum Mar 10, 2016)(finding that use of a domain to sell products that compete directly with a Complainant's business does not constitute a bona fide offering of goods and services or a legitimate noncommercial or fair use pursuant to Policy 4 ( c ) (i) or (iii). )
As such the Panel finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Complainant also alleges that Respondent's use of the site attached to the Domain Name is commercial and it is using it to make a profit by competing with Complainant in a confusing and deceptive manner. In the opinion of the Panel, the use made of the Domain Name in relation to the site is confusing and deceptive, in that visitors to the site might reasonably believe it is connected to or approved by Complainant, as it offers competing services to Complainant under a Domain Name containing Complainant’s AMAZON mark and a similar trading name without explanation. The use on Respondent's web site in relation to web services shows it is within the likelihood of probabilities that Respondent is aware of Complainant and its products as these are specialized services and Complainant is very well known. Accordingly, the Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating the likelihood of confusion with Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site likely to disrupt the business of Complainant. For the latter see DatingDirect.com Ltd v Aston, FA 593977 (Forum Dec 28, 2005) (Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The panel finds this diversion is also evidence of bad faith registration and use. ) See also See V Secret Catalogue Inc. v Bryant Little, FA 301728 (Forum Sept 2, 2004) (respondent’s practice of diversion motivated by commercial gain constitutes bad faith registration and use pursuant to Policy 4 (b)(iv).)
As such, the Panel believes that Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iii) and (iv) and there is no need to consider additional grounds of bad faith put forward by 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 <amazonwebsolutions.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
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