Amazon Technologies, Inc. v. Jing Yang
Claim Number: FA2112001975995
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Jing Yang (“Respondent”), Virginia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amazonphysicalstores.com>, registered with Dynadot, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 6, 2021; the Forum received payment on December 6, 2021.
On December 7, 2021, Dynadot, LLC confirmed by e-mail to the Forum that the <amazonphysicalstores.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 December 8, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 28, 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@amazonphysicalstores.com. Also on December 8, 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 January 2, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <amazonphysicalstores.com> domain name is confusingly similar to Complainant’s AMAZON mark.
2. Respondent does not have any rights or legitimate interests in the <amazonphysicalstores.com> domain name.
3. Respondent registered and uses the <amazonphysicalstores.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant, Amazon Technologies, Inc., is a leading retailer offering a wide variety and services around the globe. Complainant holds a registration for the AMAZON mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,078,496, registered July 15, 1997).
Respondent registered the <amazonphysicalstores.com> domain name on October 14, 2020, and uses it to resolve to a webpage that 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”).
The Panel finds that Complainant has rights in the AMAZON mark based on registration with the USPTO. See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <amazonphysicalstores.com> domain name uses the AMAZON mark and adds generic words and a gTLD. These changes do not distinguish a complainant’s mark and a disputed domain name under Policy ¶ 4(a)(i). See KW KONA INVESTORS, LLC v. Privacy.co.com / Privacy.co.com, Inc Privacy ID# 923815, FA 1784456 (Forum June 11, 2018) (“[T]he omission of spacing and addition of a gTLD are irrelevant in determining whether the disputed domain name is confusingly similar.”); see also MTD Products Inc. v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”) Therefore, the Panel finds that Respondent’s <amazonphysicalstores.com> domain name is confusingly similar to Complainant’s AMAZON mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Complainant claims that Respondent does not have rights or legitimate interests in the <amazonphysicalstores.com> domain name because Respondent is not commonly known by the disputed domain name and is not associated with Complainant or authorized to use Complainant’s AMAZON mark. The WHOIS information lists “Jing Yang” as the registrant of the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the guardair.com domain name according to Policy ¶ (c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name); see also 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).
Complainant also argues that Respondent is not using the <amazonphysicalstores.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use, as the domain name resolves to a webpage that offers the domain name for sale. Using a disputed domain to offer the domain name for sale is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (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). Complainant provides a screenshot of the webpage at <amazonphysicalstores.com> that showing that the disputed domain name is offered for sale. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶ 4(c)(i) or (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <amazonphysicalstores.com> domain in bad faith because it offers the domain for sale for an excess of its out-of-pocket costs. Respondent advertises that the disputed domain name is for sale for a minimum of $8,000. The Panel finds that this constitutes bad faith under policy ¶ 4(b)(i). See Retail Royalty Company and AE Direct Co LLC v. Whois Foundation / DOMAIN MAY BE FOR SALE, CHECK AFTERNIC.COM Domain Admin, FA 1821246 (Forum Jan. 13, 2019) (“Respondent lists the disputed domain name for sale for $5,759, which is a price well in excess of out of pocket costs. Such an offering can evince bad faith under Policy ¶ 4(b)(i).”)
Complainant alleges that Respondent must have had constructive and/or actual notice of Complainant's rights in the AMAZON mark prior to registration of the disputed domain name because of Complainant’s widespread use of the mark and its trademark registrations with the USPTO. The Panel agrees and finds that Respondent had actual knowledge of Complainant’s rights in the AMAZON mark when it registered the disputed domain name, demonstrating bad faith under Policy ¶ 4(a)(iii). See also 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).”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amazonphysicalstores.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: January 3, 2022
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