Amazon Technologies, Inc. v. Simran Singh
Claim Number: FA2008001907837
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Simran Singh (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <alexacustomerservice.com>, registered with NameCheap, Inc..
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
James Bridgeman SC as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 10, 2020; the Forum received payment on August 10, 2020.
On August 10, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <alexacustomerservice.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 August 11, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 31, 2020 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@alexacustomerservice.com. Also on August 11, 2020, 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 September 1, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James Bridgeman SC 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 disputed domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant relies on its rights in the ALEXA trademark acquired through its ownership of the trademark and service mark registrations set out below and its extensive use of the mark as an identifier of its cloud-based interactive voice service. Complainant has exhibited in the annex to the Complaint evidence of its extensive use of the ALEXA mark.
Complainant submits that the disputed domain name is confusingly similar to its ALEXA mark as it comprises the trademark in its entirety, adding only the descriptive or generic terms “customer” and “service”, which are directly associated with Complainant’s ALEXA-enabled device support services, in combination with the generic Top Level Domain extension (gTLD) extension <.com>. Complainant submits that the additional elements do not avoid confusing similarity with its ALEXA mark. See e.g. Amazon Technologies, Inc. v. Gulati, FA1604001671917 (Forum May 21, 2016) (“It is well established authority that the addition of generic words to a trade mark does not serve to distinguish the Domain Name from the Complainant’s mark”).
Complainant submits that Respondent has no rights in the disputed domain name arguing that Respondent is not commonly known by Complainant’s ALEXA trademark, nor is Respondent affiliated with Complainant in any way.
Complainant adds that Respondent is not licensed by Complainant to use Complainant’s ALEXA trademark, nor is Respondent authorized vendor, supplier, or distributor of Complainant’s goods and services. See Broadcom Corp. v. Ibecom PLC, FA0411000361190 (Forum Dec. 22, 2004) (finding no rights or legitimate interests where there was nothing in the record to indicate that Respondent was commonly known by the domain name).
Complainant submits that Respondent is using the disputed domain name to impersonate Complainant. Complainant refers to a screenshot of the landing page to which the disputed domain name resolves which has a banner title: “Alexa Technical Support” and an image of Complainant’s AMAZON ECHO products is prominently displayed. Also, Complainant’s ALEXA and ALEXA Logo trademarks are the only brands and source identifiers shown on this page which employs Complainant’s ALEXA logo as its favicon. Complainant submits that such use is constitutes passing off and is not a fair, nominative or otherwise legitimate use. See e.g. Dell Inc. v. Geeks Technical Solutions Inc., FA1509001637797 (Forum Oct. 13, 2015) (finding no legitimate or bona fide use where “Respondent’s websites prominently display pictures of Complainant’s products and alleged marks, and promote Respondent’s competing computer support services”);
Furthermore, when Respondent was contacted by phone and asked, “Is this Amazon.com?,” the answer was an unequivocal “Yes.” Complainant argues that Respondent is therefore using the disputed domain name to promote alternative support services which is not a legitimate or bona fide use. See e.g. Amazon Technologies, Inc. v. Lin, FA1301001480702 (Forum Feb 26, 2013) (“Respondent’s use of the disputed domain name to offer competing goods or services is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)”).
Complainant submits that Respondent registered and is using the disputed domain name in bad faith arguing that since Respondent displays Complainant’s ALEXA logo device mark and an image of Complainant’s AMAZON ECHO product on the landing page for the disputed domain name, it is clear that Respondent registered the disputed domain name in bad faith with knowledge of Complainant’s rights and intended to create an association with Complainant and its goods and services. See Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1148 (9th Cir. Feb. 11, 2002) (finding that “[w]here an alleged infringer chooses a mark he knows to be similar to another, one can infer an intent to confuse”).
Complainant adds that by incorporating Complainant’s well-known ALEXA trademark into the disputed domain name and adopting Complainant’s ALEXA brand and the ALEXA Logo as its own identity, Respondent creates the false impression that its website originates with or is endorsed or certified by Complainant. “This is precisely the sort of conduct that falls under Policy ¶ 4(b)(iv) and thus evidences Respondent’s bad faith registration and use of the disputed domain names.” MetroPCS, Inc. v. Robertson, FA0609000809749 (Forum Nov. 13, 2006) (finding bad faith where the respondent’s web site gave the false impression of being affiliated with the complainant).
Complainant argues furthermore that by promoting Respondent’s services using the ALEXA logo and a domain name confusingly similar to ALEXA, Respondent has attempted to commercially benefit, unfairly and opportunistically, from the goodwill associated with Complainant’s marks, and this conduct of diversion shows bad faith registration and use pursuant to Policy ¶ 4(b)(iv). 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)”).
Additionally, Complainant asserts that Respondent’s promotion of alternative support services diverts and disrupts Complainant’s business and falls under Policy ¶ 4(b)(iii). See e.g. Dell Inc. v. Geeks Technical Solutions Inc., FA1509001637797 (Forum Oct. 13, 2015) (finding that offering competing support services using <dell-help.com> constituted bad faith).
In conclusion, Complainant submits that Respondent’s use of a WHOIS privacy shield for a commercial web site also evidences bad faith. Microsoft Corp. and Skype v. Contact Privacy Inc. Customer 0126766269, FA1303001491615 (Forum May 6, 2013) (“Respondent registered the disputed domain name using a privacy service. In the commercial context, this raises the rebuttable presumption of bad faith registration and use. Respondent has done nothing to rebut this presumption. That alone justifies a finding of bad faith”).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is the owner of the ALEXA mark which it uses on its cloud-based interactive voice service and for which it holds a portfolio of trademark and service mark registrations including the following:
· United States registered service mark ALEXA registration number 2,181,470, registered on August 11, 1998 on the Principal Register for services in international class 42;
· United States registered trademark ALEXA registration number 2,189,928, registered on September 15, 1998 on the Principal Register for services in international class 42
· United States registered trademark and service mark registration number 5,563,417, registered on Sep. 18, 2018 on the Principal Register for goods and services in international classes 9, 35, 36, 39, 41, 42, 43, 44, 45.
Also of relevance is Complainant’s ownership of United States registered trademark and service mark, registration number 5,413,055on the Principal Register for goods and services in international classes 9, 35, 36, 39, 41, 42, 43, 44, 45, which is a blue colored device used by Complainant to distinguish its ALEXA branded products. Complainant refers to this device as the “ALEXA logo” and it is used by Respondent as a favicon on the website to which the disputed domain name resolves.
The disputed domain name <alexacustomerservice.com> was registered on August 5, 2020 and resolves to a website on which Complainant’s ALEXA mark is used, with a banner title: “Alexa Technical Support” and which creates the misleading impression that it is hosted by or associated with Complainant.
There is no information available about Complainant except for that provided in the Complaint, the Registrar’s WhoIs and the information provided by the Registrar in response to the enquiry from the Forum requesting verification of the registration details of the disputed domain name. Respondent availed of a proxy service to conceal his identity which was disclosed by the Registrar in the course of this proceeding.
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 adduced clear and convincing, uncontested evidence of its rights in the ALEXA trademark acquired through its ownership of the trademark and service mark registrations set out below and its extensive use of the mark as an identifier of its cloud-based interactive voice services.
The disputed domain name is composed of Complainant’s ALEXA mark in combination with the words “customer” and “service”, and the gTLD extension <.com>.
Complainant’s trademark and service mark is the initial, dominant and only distinctive element of the disputed domain name. The descriptive and generic terms “customer” and “service” create no distinguishing difference and the gTLD <.com> extension would be regarded in the context of the registration and use of the disputed domain name as a standard requirement for registration.
This Panel finds therefore that the disputed domain name is confusingly similar to the ALEXA trademark in which Complainant has rights and Complainant has succeeded in the first element of the test in Policy ¶ 4(a)(i).
Complainant has made out a prima facie case that Respondent has no rights in the disputed domain name arguing:
· that Respondent is not commonly known by Complainant’s ALEXA trademark;
· that Respondent is not affiliated with Complainant in any way;
· that Respondent is not licensed by Complainant to use Complainant’s ALEXA trademark;
· that Respondent is not an authorized vendor, supplier, or distributor of Complainant’s goods and services;
· that Respondent is using the disputed domain name to impersonate Complainant;
· that Respondent is using Complainant’s trademarks and identity on the website to which the disputed domain name resolves to promote competing products while impersonating Complainant.
It is well established that if a complainant makes out a prima facie case, the burden of production shifts to Respondent to prove his rights or legitimate interests in the disputed domain name. Respondent has failed to file any Response to the Complaint or provide any defense to Complainant’s allegations and so has not discharged the burden.
In these circumstances this Panel must find that on the balance of probabilities Respondent has no rights or legitimate interests in the disputed domain name. Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii).
Complainant has exhibited a screenshot of the landing page to which the disputed domain name resolves which shows that Respondent is impersonating Complainant, using its trademarks including its logo trademark as a favicon and claiming to be Complainant when telephoned by an enquirer.
In these circumstances, this Panel finds that on the balance of probabilities the registrant of the disputed domain name was aware of Complainant, its mark and reputation at the time of registration. On the balance of probabilities the disputed domain name was created, chosen and registered to be used to impersonate Complainant.
This Panel finds therefore that the disputed domain name was registered in bad faith with Complainant’s mark in mind in order to take predatory advantage of Complainant’s reputation and goodwill in the ALEXA mark.
The uncontested evidence of Complainant shows that the disputed domain name is being used to lure unsuspecting consumers to Respondent’s website, that Respondent is using the website to which the disputed domain name resolves to impersonate Complainant and presenting competing services as those of Complainant.
This Panel finds therefore that on the balance of probabilities, Respondent is using the disputed domain name in bad faith in an intentional attempt to attract, for commercial gain, Internet users to his web site by creating a likelihood of confusion with Complainant's ALEXA mark as to the source, sponsorship , affiliation, or endorsement of his web site.
As this Panel has found that the disputed domain name was registered and is being used in bad faith, Complainant has therefore succeeded in the third and final element of the test in Policy ¶ 4(a)(iii) and is entitled to succeed in its application for transfer of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <alexacustomerservice.com> domain name be TRANSFERRED from Respondent to Complainant.
James Bridgeman SC
Panelist
Dated: September 2, 2020
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