Amazon Technologies, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA2106001952536
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <amazon-crop.com> and <amazondotforce.com>, registered with Godaddy.Com, Llc.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 24, 2021; the Forum received payment on June 24, 2021.
On June 25, 2021; June 28, 2021, Godaddy.Com, Llc confirmed by e-mail to the Forum that the <amazon-crop.com> and <amazondotforce.com> domain names are registered with Godaddy.Com, Llc and that Respondent is the current registrant of the names. Godaddy.Com, Llc has verified that Respondent is bound by the Godaddy.Com, Llc 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 June 28, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 19, 2021 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@amazon-crop.com, postmaster@amazondotforce.com. Also on June 28, 2021, 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 July 22, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant contends as follows:
Complainant, Amazon Technologies, Inc. is a leading online retailer with a broad range of other products and services.
Complainant has rights in the AMAZON mark based upon registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <amazon-crop.com> and <amazondotforce.com> domain names are confusingly similar to Complainant’s AMAZON mark since they each incorporate the entirety of the mark, merely adding the generic terms “crop,” “dot,” and “force,” as well as the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <amazon-crop.com> and <amazondotforce.com> domain names because Respondent is not commonly known by the at-issue domain names and is not licensed to use Complainant’s AMAZON mark. Additionally, Respondent fails to use the domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent hosts redirects users to malicious software downloads and competing websites. Respondent also offers the domain names for sale.
Respondent registered and uses the <amazon-crop.com> and <amazondotforce.com> domain names in bad faith. Respondent offers the at-issue domain names for sale. Respondent also displays a pattern of bad faith through previous negative UDRP decisions. Respondent also attracts users for commercial gain by displaying third-party commercial links and promoting malware distribution. Finally, Respondent had actual knowledge of Complainant’s rights in the AMAZON mark when it registered the disputed domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the AMAZON mark through its registration of such mark with the USPTO.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain names after Complainant acquired rights in the AMAZON trademark.
Respondent uses the at-issue domain names to redirect users to malicious software downloads and competing websites.
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”).
The at-issue domain names are each confusingly similar to a trademark in which Complainant has rights.
Complainant shows that it has a USPTO registration for its AMAZON trademark. Such registration is sufficient to demonstrate Complainant’s rights in the AMAZON mark under Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Respondent’s <amazon-crop.com> and <amazondotforce.com> domain names each contain Complainant’s AMAZON trademark followed by the generic term “-crop” or by the generic terms “dot force.” Both domain names end with the top-level domain name “.com.” The differences between Respondent’s domain names and Complainant’s trademark are insufficient to distinguish either domain name from the Complainant’s AMAZON mark for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <amazon-crop.com> and <amazondotforce.com> domain names are each confusingly similar to Complainant’s trademark. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists 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).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006).
Here, Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
WHOIS information for the at-issue domain names identifies the domain names’ registrant as Carolina Rodrigues / Fundacion Comercio Electronico.” The record before the Panel contains no evidence that otherwise tends to prove that Respondent is commonly known by either the <amazon-crop.com> or the <amazondotforce.com> domain name. The Panel therefore concludes that Respondent is not commonly known by <amazon-crop.com> or <amazondotforce.com> for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent’s <amazon-crop.com> and <amazondotforce.com> domain names pose as being affiliated or sponsored by Complainant and on browsing to such addresses direct internet visitors to websites which either display advertising and/or engage in the distribution of malware. Respondent’s use of the domain names for such purposes shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Target Brands, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1807097 (Forum Oct. 30, 2018) (no rights or legitimate interests found where “Respondent uses the disputed domain name to lure internet users to a website that attempts to install malware on the user’s computer, and redirects internet users to Complainant’s competitor’s websites.”).
Given the forgoing and absent any contrary evidence from Respondent, Complainant satisfies its initial burden and shows Respondent’s lack of rights and legitimate interests in the at-issue domain names under Policy ¶ 4(a)(ii).
As discussed below without limitation, bad faith circumstances are present from which the Panel concludes that Respondent registered and used the at-issue domain names in bad faith pursuant to Policy ¶ 4(a)(iii).
First, Respondent has suffered more than 100 adverse UDRP decisions. Respondent’s pattern of domain name abuse suggests Respondent’s bad faith registration and use of the at-issue domain names in the instant proceeding under Policy ¶ 4(b)(ii). See Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA1209001464477 (Forum Nov. 30, 2012) (finding where the record reflected that the respondent had been a respondent in other UDRP proceedings in which it was ordered to transfer disputed domain names to various complainants established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)).
Second, the at-issue domain names are listed for-sale on third party webpages. A general offer to sell a disputed domain name may evidence bad faith pursuant to Policy ¶ 4(b)(i). See Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Forum Nov. 6, 2000) (finding that “general offers to sell the domain name, even if no certain price is demanded, are evidence of bad faith”). Complainant provides screenshots of the webpages where the <amazon-crop.com> and <amazondotforce.com> domain names are being offered for sale for $500.00 and $899.00 respectively. However, it is not clear from the record that Respondent was aware of these listings prior to the instant dispute. Quite possibly the third party broker listing the domain names did so on speculation anticipating that Respondent would agree to the terms of sale once presented with a ready, willing, and able buyer and an agreeable price.
Next, Respondent registered and uses the <amazon-crop.com> and <amazondotforce.com> domain names to deceive internet users so that it might gain commercially. The <amazondotforce.com> domain name addresses a pay-per-click link promoting job listings from which Respondent presumably profits. Loading <amazon-crop.com> into one’s browser initially brings up an advertisement urging shoppers seeking AMAZON to try another retailer. The users are then redirected to landing pages at third party domains and the browser attempts to install malware on the users’ device. Using the domain names in this manner is disruptive to Complainant’s business and demonstrates Respondent’s bad faith under Policy ¶ 4(b)(iii) & (iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also, Costco Wholesale Membership, Inc. v. Domain Admin, Whois Privacy Corp./Ryan G Foo, PPA Media Services, D2015-2095 (WIPO Jan. 12, 2016) (finding bad faith where respondent used domain name to “direct Internet traffic to the rotating web pages from which it most likely derives profit.”); see also, eNom, Incorporated v. Muhammad Enoms General delivery / Enoms.com has been registered just few days after Enom.com, therefore could not have been regstere, FA1505001621663 (Forum July 2, 2015) (“In addition, Respondent has used the disputed domain name to install malware on Internet users’ devices. The Panel finds that this is bad faith under Policy ¶ 4(a)(iii).”).
Finally, Respondent had actual knowledge of Complainant’s rights in the AMAZON mark when it registered <amazon-crop.com> and <amazondotforce.com> as domain names. Respondent’s actual knowledge is evident from the notoriety of Complainant’s trademark and Respondent’s registration of multiple domain names containing Complainant’s trademark. Respondent’s registration of the two confusingly similar domain names without having rights or legitimate interests in such domain names but having knowledge of Complainant’s rights therein, shows Respondent’s bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering 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 <amazon-crop.com> and <amazondotforce.com> domain names be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: July 23, 2021
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