Amazon Technologies, Inc. v. tanyeli tekin
Claim Number: FA2108001960735
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is tanyeli tekin (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kindlevella.com>, registered with Dynadot, 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 August 23, 2021; the Forum received payment on August 23, 2021.
On August 23, 2021, Dynadot, LLC confirmed by e-mail to the Forum that the <kindlevella.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 August 24, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 13, 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@kindlevella.com. Also on August 24, 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 September 15, 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant contends as follows:
Complainant, Amazon Technologies, Inc., is one of the world’s leading retailers.
Complainant has rights in the KINDLE and KINDLE VELLA marks based upon registration with the United States Patent and Trademark Office (“USPTO”) and European Union Intellectual Property Office (“EUIPO”).
Respondent’s <kindlevella.com> domain name is identical to Complainant’s KINDLE VELLA and also incorporates the KINDLE mark, merely removing the space and adding the “.com” generic top level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <kindlevella.com> domain name because Respondent is not commonly known by the at-issue domain name and is not authorized to use Complainant’s marks. Additionally, Respondent fails to use the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, the webpage at the at-issue domain name advertises the sale of the domain name.
Respondent registered and uses the <kindlevella.com> domain name in bad faith. Respondent offers the at-issue domain name for sale in excess of out-of-pocket costs. Further, the timing of Respondent’s domain name registration reflects opportunistic bad faith. Additionally, Respondent had actual knowledge of Complainant’s rights in the KINDLE marks when it registered the at-issue domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in KINDLE and KINDLE VELLA.
Respondent is not affiliated with Complainant and is not authorized to use the KINDLE or KINDLE VELLA mark in any capacity.
The at‑issue domain name was registered after Complainant acquired trademark rights in KINDLE or KINDLE VELLA.
Respondent offers the domain name for sale.
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 rights in the KINDLE and KINDLE VELLA marks based upon registration with the USPTO and EUIPO. Registration of a mark with a recognized trademark organization is sufficient to establish rights in a mark per Policy ¶ 4(a)(i). See Bittrex, Inc. v. Domain Privacy Services, FA 1786849 (Forum June 15, 2018) (finding Complainant has trademark rights in the BITTREX mark through registration of the mark with the EUIPO and the USPTO.).
Respondent’s <kindlevella.com> domain name contains Complainant’s KINDLE and KINDLE VELLA (less its domain name impermissible space) trademarks followed by the top-level “.com.” The slight difference between Complainant’s trademarks and the at-issue domain name does nothing to distinguish the domain name from Complainant’s marks under Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <kindlevella.com> domain name is confusingly similar or identical to trademarks in which Complainant has rights. See Vince Andrich v. AnonymousSpeech AnonymousSpeech, FA 1406333 (Forum Oct. 26, 2011) (finding confusing similarity per Policy ¶ 4(a)(i) as “Respondent’s <vinceandrich.net> domain name is composed of Complainant’s mark, without the space between words, combined with the gTLD “.net.” These changes do not distinguish the disputed domain name from Complainant’s VINCE AND RICH mark.”).
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). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademarks 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. See Navistar International Corporation v. N Rahmany, FA1505001620789 (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).
The WHOIS information <kindlevella.com> identifies the domain name’s registrant as “tanyeli tekin” and the record before the Panel contains no evidence otherwise showing that Respondent is commonly known by the <kindlevella.com> domain name. The Panel therefore concludes that Respondent is not commonly known by <kindlevella.com> for the purposes of Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name).
Respondent’s <kindlevella.com> domain name is used to address a webpage stating “[t]his domain is available for sale!” and offering the option to “Buy Now” for $95,000. Respondent’s use of the at-issue domain name in this manner indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use of the domain name under Policy ¶ 4(c)(iii). See 3M Company v. Kabir S Rawat, FA 1725052 (Forum May 9, 2017) (holding that “a general offer for sale… provides additional evidence that Respondent lacks rights and legitimate interests” in a disputed domain name).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
Respondent’s <kindlevella.com> domain name was registered and used in bad faith. As discussed below without limitation, circumstances are present which compel the Panel to conclude that Respondent acted in bad faith regarding the at-issue domain name pursuant to paragraph 4(a)(iii) of the Policy.
As discussed elsewhere regarding rights and legitimate interests, Respondent registered and used its <kindlevella.com> domain name to address a webpage offering <kindlevella.com> for sale for a price apparently in excess of Respondent’s cost. Offering a domain name for sale for significantly more than the costs associated with registration and maintenance demonstrates Respondent’s bad faith pursuant to Policy ¶ 4(b)(i). See loanDepot.com, LLC v. Expired domain caught by auction winner.***Maybe for sale on Dynadot Marketplace*** c/o Dynadot, FA 1786281 (Forum June 8, 2018) (“Complainant shows that Respondent offers the disputed domain name for sale for $950, no doubt above its out-of-pocket costs. The Panel finds that this constitutes bad faith under Policy ¶ 4(b)(i).”).
Next, Complainant shows that Respondent registered the at-issue domain name close in time to a major event involving Complainant and its trademarks. The event concerned the launch of KINDEL VELLA, a new mobile-first, interactive reading experience for serialized stories. Furthermore, Complainant applied to register its KINDLE VELLA mark in multiple countries on January 18-19, 2021, and Respondent registered the disputed domain name on January 19, 2021. The close proximity of Respondent’s registration of the at-issue domain name to Complainant’s publicity event concerning KINDLE VELLA and to Complainant’s application for trademark registration thereof indicate Respondent’s opportunistic bad faith under Policy ¶ 4(a)(iii). See Arizona Board of Regents, for and on behalf of Arizona State University v. Weiping Zheng, FA1504001613780 (Forum May 28, 2015) (finding that the respondent had acted in opportunistic bad faith according to Policy ¶ 4(a)(iii), when it registered the disputed domain name just one week after the complainant filed applications to register the SUB DEVIL LIFE mark, and just days after those applications became public through the USPTO’s website).
Finally, Respondent had actual knowledge of Complainant’s rights in the KINDLE and KINDLE VELLA trademarks when it registered <kindlevella.com> as a domain name. Respondent’s actual knowledge is evident from the widespread notoriety of Complainant’s KINDLE trademark and from Respondent’s opportunistic registration of <kindlevella.com>. Respondent’s registration and use of the confusingly similar <kindlevella.com> domain name with knowledge of Complainant’s rights in such domain name additionally shows Respondent’s bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) (“Complainant contends that Respondent’s knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration and use under 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);
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <kindlevella.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: September 16, 2021
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