Amazon Technologies, Inc. v. Timothy Mays aka Linda Haley aka Edith Barberdi
Claim Number: FA1504001617061
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Timothy Mays aka Linda Haley aka Edith Barberdi (“Respondent”), New Jersey, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain name at issue are <amazondevice.org> , <amazondevices.org> and <buyamazondevices.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 29, 2015; the Forum received payment on April 29, 2015.
On April 30, 2015, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <amazondevice.org> , <amazondevices.org> and <buyamazondevices.com> domain names are registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the names. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 April 30, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 20, 2015 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@amazondevice.org, postmaster@amazondevices.org, postmaster@buyamazondevices.com. Also on April 30, 2015, 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 June 1, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 holds a registration for the AMAZON service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) (Registry No. 2,832,943, registered April 13, 2004).
Complainant uses the AMAZON mark in the operation and marketing of its business, which offers online retail store services.
The <amazondevice.org> domain name was registered on January 3, 2015.
The <amazondevices.org> domain name was registered on December 16, 2014.
The <buyamazondevices.com> domain name was registered on December 29, 2014.
The domain names are confusingly similar to Complainant’s AMAZON mark.
Respondent has not been commonly known by any of the domain names.
Respondent is not licensed or otherwise authorized by Complainant to use Complainant’s AMAZON mark.
Respondent is not using the domain names for a bona fide offering of goods or services or for a legitimate noncommercial or fair use.
The <amazondevice.org> domain name resolves to a website that displays a fake <Amazon.com> home page that is connected to malware schemes and other malicious downloads.
The <amazondevices.org> landing page presents a fraudulent New York Post home page that is connected to malware schemes and other malicious downloads.
The <buyamazondevices.com> landing page presents a fraudulent <Alibaba.com> shopping page that is connected to malware schemes and other malicious downloads.
All of the domain names intermittently redirect users to the website of one of Complainant’s commercial competitors.
Respondent has no rights to or legitimate interests in any of the domain names.
Respondent’s use of the domain names disrupts Complainant’s business.
The websites resolving from the domain names mimic Complainant’s official website, which creates a likelihood of confusion among Internet users.
Respondent seeks to profit financially from such confusion.
Respondent knew of Complainant and its rights in the AMAZON mark when it registered the domain names.
Respondent used false WHOIS information, including various aliases, when registering the domain names.
Respondent has engaged in bad faith registration and use of the domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Preliminary Issue: Multiple Respondents
Complainant alleges that the entities controlling the domain names at issue in this proceeding are the same person and/or entity operating under several aliases. In support of its contention that all named Respondents should therefore be treated as one, Complainant alleges, among other things, that:
a. All of the disputed domain names contain the word “amazon” and the word “device;”
b. All of the domain names were registered at PDR Ltd.
c. The domain names were registered within less than a month of each other.
d. All of the domain names provide invalid WHOIS phone numbers.
e. All of the domain names provide the WHOIS Name, Organization, and City in all capital letters, but the State in ordinary capitalization.
f. All of the WHOIS e-mail addresses have the same structure.
g. The host for the <amazondevice.org> and <amazondevices.org> domain names is the same.
h. The source code for <amazondevice.org> expressly references <buyamazondevices.com>.
i. The landing pages for all of the domain names mimic famous websites, add a “hidden tracker” using <histats.com> and add links to malicious websites using the class names “random_item” and “random_item_links.”
j. And all of the domain names intermittently redirect visitors to a search page for “brazilian virgin hair” at <aliexpress.com>.
Respondents do not deny any of these assertions.
Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
The undenied allegations of the Complaint are amply sufficient to justify the conclusion that the three named Respondents are in fact “the same domain holder” as contemplated in paragraph 3(c) of the Rules. Accordingly, all identified Respondents will be treated as a single Respondent for all purposes in this proceeding.
(1) the domain names registered by Respondent are confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of any of the domain names; and
(3) the same domain names were registered and are being used by Respondent 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. 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 will decide this 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 as 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) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP 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 has rights in the AMAZON service mark for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007):
As the [Complainant’s] mark is registered with the USPTO, Complainant has met the requirements of Policy ¶ 4(a)(i).
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that the <amazondevice.org> , <amazondevices.org> and <buyamazondevices.com> domain names are each confusingly similar to the AMAZON service mark. The <amazondevice.org> and <amazondevices.org> domain names incorporate the mark in full, merely adding the generic term “device” or “devices,” which describe an aspect of Complainant’s business, and the generic Top Level Domain (“gTLD”) “.org.” The <buyamazondevices.com> domain name incorporates the mark in full, and merely adds the generic terms “buy” and “devices,” which describe an aspect of Complainant’s business, plus the gTLD “.com.” These alterations of the mark, made in forming the several domain names, do not save them from the realm of confusing similarity under the standards of the Policy. See, for example, Gillette Co. v. RFK Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005) (finding that adding to the mark of another the term “batteries,” which described a UDRP complainant’s products, and the generic top-level domain “.com,” were insufficient to distinguish a respondent’s <duracellbatteries.com> domain name from that complainant’s DURACELL mark).
See also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to the mark of another in creating a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006):
Complainant must first make a prima facie showing that Respond-ent 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 has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain names. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain names which are cognizable under the Policy.
We begin by noting that Complainant asserts, and Respondent does not deny,
that Respondent has not been commonly known by the <amazondevice.org>, <amazondevices.org> and <buyamazondevices.com> domain names, and that Respondent is not licensed by Complainant to use Complainant’s AMAZON mark. Moreover, the pertinent WHOIS information identifies the registrants of the domain names only as “Timothy Mays,” “Linda Haley,” and “Edith Barberdi,” none of which resembles any of the domain names. On this record, we conclude that Respondent has not been commonly known by any of the contested domain names so as to have acquired rights to or legitimate interests in any of them within the meaning of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that a respondent was not commonly known by the disputed domain names, and so failed to show that it had rights to or legitimate interests in them as provided in Policy ¶ 4(c)(ii), where the relevant WHOIS information, as well as all other information in the record, gave no indication that that respondent was commonly known by the domain names, and where a UDRP complainant had not authorized that respondent to register a domain name containing its mark).
We next observe that Complainant asserts, without objection from Respondent, that Respondent’s <amazondevice.org> domain name resolves to a website that displays a fake <Amazon.com> home page which is connected to malware schemes and other malicious downloads, that the landing page for the domain name <amazondevices.org> presents a fraudulent New York Post home page which is also connected to malware schemes and other malicious downloads, that the <buyamazondevices.com> landing page presents a fraudulent <Alibaba.com> shopping page that is likewise connected to malware schemes and other malicious downloads, and that all of the domain names intermittently redirect users to the website of one of Complainant’s competitors. This employment of the domain names is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use. See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that a respondent’s attempts to pass itself off online as a UDRP complainant, via an unauthorized use of that complainant’s mark in a domain name, was evidence that that respondent had no rights to or legitimate interests in the domain name as provided in Policy ¶ 4(c)(i) or 4(c)(iii)).
See also Hilton Hotels Corp. v. Padonack, FA 1043687 (Nat. Arb. Forum Sept. 6, 2007) (finding that the use of a disputed domain name to host a website that attempted to download a virus when accessed by unsuspecting Internet users did not constitute 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)).
The Panel therefore finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent’s use of the disputed <amazondevice.org>, <amazondevices.org> and <buyamazondevices.com> domain names as alleged in the Complaint disrupts Complainant’s business. Under Policy ¶ 4(b)(iii), this stands as proof of Respondent’s bad faith in the registration and use of the domain names. See Am. Online, Inc. v. Tapia, FA 328159 (Nat. Arb. Forum Dec. 1, 2004):
[A]ppropriating Complainant’s mark to refer customers seeking Complainant to Complainant’s competitors is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).
We are also convinced by the evidence that Respondent’s employment of the contested domain names to resolve to websites that mimic Complainant’s official website is an effort to pass itself off as Complainant in order to profit from the confusion thus caused among Internet users. Under Policy ¶ 4(b)(iv), this too is proof of Respondent’s bad faith in the registration and use of the domain names. See Am. Online, Inc. v. Miles, FA 105890 (Nat. Arb. Forum May 31, 2002):
Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.
In addition, Respondent’s undenied use of the websites resolving from the contested domain names to distribute malware and other malicious downloads further illustrates its bad faith in the registration and use of those domain names. See Victoria’s Secret Stores Brand Mgmt., Inc. v. PrivacyProtect.org, FA 1357512 (Nat. Arb. Forum December 17, 2010) (finding that a domain name used to attract Internet users to a resolving website that attempted to download malicious software onto their computers “indicates bad faith registration and use according to Policy ¶ 4(a)(iii)”).
For these reasons, the Panel finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <amazondevice.org>, <amazondevices.org> and <buyamazondevices.com> domain names be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: June 9, 2015
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