Amazon Technologies, Inc. v. Tom Lin
Claim Number: FA1301001480702
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Tom Lin (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <imazon.co>, registered with GODADDY.COM, INC.
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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 17, 2013; the National Arbitration Forum received payment on January 17, 2013.
On January 17, 2013, GODADDY.COM, INC. confirmed by e-mail to the National Arbitration Forum that the <imazon.co> domain name is registered with GODADDY.COM, INC. and that Respondent is the current registrant of the name. GODADDY.COM, INC. has verified that Respondent is bound by the GODADDY.COM, 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 January 17, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 6, 2013 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@imazon.co. Also on January 17, 2013, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 12, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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.
i. Respondent is not commonly known by Complainant’s AMAZON mark.
ii. On January 8, 2013, Respondent’s disputed <imazon.co> domain name began redirecting <imazon.co> to <2style.co>, another online retail store operated by Respondent which “offers cheap name brand shoes, clothing, handbags for women, and men.”
iii. Respondent’s disputed domain name features a black and orange color scheme and Respondent’s logo imitates Complainant’s current AMAZON logos, constituting passing off.
i. Respondent owns or is the administrative e-mail contact for numerous domain names that are variations of famous brands.
ii. Respondent’s promotion of competing services diverts and disrupts Complainant’s business.
iii. Respondent has attempted to commercial benefit, unfairly and opportunistically, from the goodwill associated with Complainant’s AMAZON and AMAZON.COM trademarks.
iv. Respondent registered the disputed domain name with knowledge of Complainant’s rights.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant has rights in its AMAZON mark.
2. Respondent’s <imazon.co> domain name is confusingly similar to Complainant’s mark.
3. Respondent has no rights to or legitimate interests in the domain name.
4. Respondent registered and used the domain name in bad faith.
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(e), 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 (Nat. Arb. 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.”).
Complainant argues that it is one of the world’s largest online retailers, offering products and services to more than 100 countries around the globe. Complainant contends that its <amazon.com> is the No. 5 most-viewed website in the United States. Complainant asserts that it has more than 173 million active customer accounts. Complainant argues that it provides evidence that it is the owner of trademark registrations with the USPTO for the AMAZON mark (Reg. No. 2,832,943, registered April 13, 2004) and for the AMAZON.COM mark (e.g., Reg. No. 2,837,138, registered April 27, 2004). See Complainant’s Exhibit K. Complainant also provides evidence that it is the owner of trademark registrations with SAIC for the AMAZON mark (e.g., Reg. No. 1,427,682, registered December 28, 2000). Complainant asserts that it also shows that it is the owner of trademark registrations in various countries throughout the world. See Complainant’s Exhibit K. The Panel notes that Respondent appears to reside in China. Thus, the Panel finds that Complainant’s registration of the AMAZON mark with the SAIC and USPTO sufficiently establishes Complainant’s rights in AMAZON mark pursuant to Policy ¶ 4(a)(i). See Digi-Key Corp. v. Bei jing ju zhong cheng dian zi ji shu you xian gong si, FA 1213758 (Nat. Arb. Forum Oct. 1, 2008) (“The Panel finds these registrations [with the USPTO and SAIC] sufficiently establish Complainant’s rights in its DIGI-KEY mark pursuant to Policy ¶ 4(a)(i).”).
Complainant contends that Respondent’s <imazon.co> domain name is identical to Complainant’s AMAZON mark, except that the letter “a” has been replaced with the letter “i.” The Panel finds that the misspelling of a mark in a disputed domain name does not differentiate Respondent’s disputed domain name from Complainant’s mark under Policy ¶ 4(a)(i). See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”). Complainant also asserts that Respondent has added the gTLD “.com” in Respondent’s disputed domain name. The Panel finds that the addition of a gTLD to a mark in a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Thus, the Panel concludes that Respondent’s <imazon.co> domain name is confusingly similar to Complainant’s AMAZON mark pursuant to Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent is not commonly known by Complainant’s AMAZON mark. Complainant asserts that the WHOIS information identifies Respondent as “Tom Lin.” See Complainant’s Exhibit A. Complainant contends that Respondent is not affiliated with Complainant in any way and that Respondent is not licensed by Complainant to use Complainant’s AMAZON mark. Complainant argues that Respondent is not an authorized vendor, supplier, or distributor of Complainant’s goods and services. The Panel notes that Respondent does not provide any additional evidence that it is known by the domain name. Therefore, the Panel determines that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. 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).
Complainant asserts that on January 8, 2013, Respondent’s disputed <imazon.co> domain name began redirecting to <2style.co>, another online retail store operated by Respondent which “offers cheap name brand shoes, clothing, handbags for woman, and men.” Complainant argues that Respondent’s site features dubious deals such as “Rolex Watches” for $109 and a “Louis Vuitton” purse for $59. See Complainant’s Exhibits M and N. The Panel finds that 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). See Gardens Alive, Inc. v. D&S Linx, FA 203126 (Nat. Arb. Forum Nov. 20, 2003) (finding that the respondent used a domain name for commercial benefit by diverting Internet users to a website that sold goods and services similar to those offered by the complainant and thus, was not using the name in connection with a bona fide offering of goods or services nor a legitimate noncommercial or fair use).
Complainant asserts that Respondent’s disputed domain name features a black and orange color scheme and Respondent’s logo imitates Complainant’s current AMAZON logos, constituting passing off. Complainant argues that Respondent’s logo uses the similar bold lowercase letters, black and orange color scheme, and an inverted variation of the AMAZON smile design. See Complainant’s Exhibits M and N. Complainant contends that Respondent’s use of the domain name is likely to mislead the public. The Panel finds that Respondent’s attempt to pass off as Complainant is not a bona fide offering of goods and services nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii). See Kmart of Mich., Inc. v. Cone, FA 655014 (Nat. Arb. Forum April 25, 2006) (The panel found the respondent’s attempt to pass itself of as the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii) when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website).
Complainant argues that Respondent owns or is the administrative e-mail contact for numerous domain names that are variations of famous brands, including <fnike.info> and <fnikee.info> (variants of NIKE), <ngroupon.com> (a variation of GROUPON), <bestlala.com> (a combination of BEST BUY and RUE LA LA, both prominent online retailers), and others. The Panel notes, however, that these domain names have no involvement in the present dispute and there have not been determinations made by a panel regarding possible bad faith. Therefore, the Panel disregards Complainant’s arguments regarding the establishment of a pattern of bad faith.
Complainant asserts that Respondent’s promotion of competing services diverts and disrupts Complainant’s business. The Panel notes that Respondent’s disputed domain name resolves to a website which promotes services that are very similar to the services offered by Complainant’s AMAZON website. See Complainant’s Exhibits M and N. Therefore, the Panel concludes that Respondent’s promotion of competing services disrupts Complainant’s business under Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. 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 evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Complainant asserts that Respondent has attempted to commercial benefit, unfairly and opportunistically, from the goodwill associated with Complainant’s AMAZON and mark. Complainant argues that Respondent has created the false impression of a site that originates with or is sponsored by Complainant. The Panel finds that Respondent uses the disputed domain name to promote competing products. The Panel finds that Respondent attempts to take commercial advantage of Internet users’ mistakes as to the source of the disputed domain name under Policy ¶ 4(b)(iv). See Scholastic Inc. v. Applied Software Solutions, Inc., D2000-1629 (WIPO Mar. 15, 2001) (finding bad faith under Policy ¶ 4(b)(iv) because the respondent initially used the disputed domain name to sell educational services that targeted the complainant’s market).
Complainant argues that Respondent’s logo uses the similar bold lowercase letters, black and orange color scheme, and an inverted variation of the AMAZON smile design. See Complainant’s Exhibits M and N. The Panel finds that Respondent’s attempt to pass itself off as Complainant shows bad faith use and registration under Policy ¶ 4(a)(iii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the disputed domain name was registered and used in bad faith where the respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . to perpetrate a fraud upon individual shareholders who respected the goodwill surrounding the AIG mark”).
Complainant contends that Respondent registered the disputed domain name with knowledge of Complainant’s rights. Complainant argues that Respondent’s knowledge of Complainant’s rights in the AMAZON mark is evidenced by Respondent’s directly competing online retail business and choice of logo with the same stylization as Complainant’s AMAZON logo. The Panel finds that Respondent had actual knowledge of Complainant's mark and rights and therefore determines that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Nat'l Patent Servs. Inc. v. Bean, FA 1071869 (Nat. Arb. Forum Nov. 1, 2007) ("[C]onstructive notice does not support a finding of bad faith registration."); see also Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent "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 <imazon.co> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: February 26, 2013
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