Amazon Technologies, Inc. v. JEREMY S. MOORE
Claim Number: FA1603001666264
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by David Bateman of K&L Gates LLP, Washington, USA. Respondent is JEREMY S. MOORE (“Respondent”), Indiana, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <buyamazonreviews.com>, registered with eNom, Inc.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 18, 2016; the Forum received payment on March 18, 2016.
On March 18, 2016, eNom, Inc. confirmed by e-mail to the Forum that the <buyamazonreviews.com> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. has verified that Respondent is bound by the eNom, 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 March 18, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 7, 2016 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@buyamazonreviews.com. Also on March 18, 2016, 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 April 11, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, 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 uses the AMAZON mark in connection with its online retail store <amazon.com> one of the world’s largest online retailers, offering products and services to more than 100 countries around the globe. The AMAZON mark has been registered with the United States Patent and Trademark Office (“USPTO”) by Complainant (Reg. No. 2,832,943, Registered Apr. 13, 2004). Respondent’s <buyamazonreviews.com> is confusingly similar to Complainant’s AMAZON mark as it adds the descriptive terms “buy” and “reviews,” and the generic top level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests. Respondent is not commonly known by the disputed domain name, nor is Respondent a licensee of Complainant. Further, the domain name has been used by Respondent to run a competing business which offers vendors on <amazon.com> fraudulent positive reviews on their products in an attempt to promote their sales in violation of the Amazon user agreement.
Respondent has engaged in bad faith registration and use. Respondent has disrupted Complainant’s business by operating a competing business on the resolving webpage. Respondent is attempting to commercially profit from a likelihood of confusion. Lastly, because Complainant’s AMAZON trademark has become so famous, Respondent had actual knowledge of Complainant’s trademark rights at the time of the disputed domain name’s registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Amazon Technologies, Inc. of Seattle, WA, USA. Complainant is the owner of domestic and international registrations for the mark AMAZON, which it has used continuously since at least as early as 1995 in connection with the provision of goods and services for its online retail business.
Respondent is Jeremy S. Moore of Indianapolis, IN, USA. Respondent’s registrar’s address is listed as Kirkland, WA, USA. The Panel notes that the disputed domain name was registered on or about July 29, 2012.
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 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 has registered the AMAZON trademark with the USPTO (e.g., Reg. No. 2,832,943, registered Apr. 13, 2004). The Panel finds that registration with the USPTO is sufficient to establish rights in a trademark. See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations [with the USPTO] establish Complainant's rights in the BLIZZARD mark.”).
Complainant argues that the <buyamazonreviews.com> domain name is confusingly similar to the AMAZON trademark. Complainant notes that the domain name contains the entire mark and adds the generic terms “buy” and “reviews” along with the gTLD “.com.” The “.com” gTLD is insufficient to distinguish a domain name from the trademark at issue. See Fed’n of Gay Games, Inc. v. Hodgson, D2000-0432 (WIPO June 28, 2000) (finding that the domain name <gaygames.com> is identical to the complainant's registered trademark GAY GAMES). Past panels have found confusing similarity where the domain name contains the entire trademark and adds generic terms. See Quixtar Inv., Inc. v. Smithberger, D2000-0138 (WIPO Apr. 19, 2000) (finding that because the domain name <quixtar-sign-up.com> incorporates in its entirety the complainant’s distinctive mark, QUIXTAR, the domain name is confusingly similar). The Panel here finds that the addition of “buy” and “reviews” to the disputed domain name is inconsequential and that the <buyamazonreviews.com> domain name is confusingly similar to the AMAZON trademark.
Respondent makes no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel recognizes that 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), 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). The Complainant has met this burden.
Complainant asserts that Respondent is not commonly known by the <buyamazonreviews.com> domain name, nor is Respondent in possession of licensing rights that would allow him to use the AMAZON trademark in domain names. The Panel notes that “JEREMY S. MOORE” is listed as the registrant of record for the <buyamazonreviews.com> domain name. The Panel further notes that Respondent has not provided any evidence to rebut Complainant’s assertions. Therefore the Panel finds that Respondent lacks rights or legitimate interests under Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Complainant argues that Respondent’s use of the <buyamazonreviews.com> domain name fails to consist of a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant further asserts the disputed domain name is being used by Respondent to run a business that serves as a disruption to Complainant’s legitimate business. Complainant provides a screenshot of the resolving webpage associated with the <buyamazonreviews.com> domain name. Visitors are invited to “Buy Amazon Reviews” and “Outrank the Competition.” Complainant argues that Respondent is using the disputed domain name in a manner calculated to deceive Internet users seeking products on <amazon.com> in violation of the Amazon User Agreement. Panels have found a lack of rights or legitimate interest where a respondent has failed to distinguish itself from the complainant. See Smith v. Network Operations Ctr., FA 371622 (Nat. Arb. Forum Jan. 13, 2005) (finding that the respondent’s use of the <ambersmith.com> domain name “that contain[ed] material directly related to Complainant, including her name and photograph prominently displayed at the top of the page” did not fall within the parameters of Policy ¶¶ 4(c)(i) or (iii) because it presented a false association with the complainant).
Complainant contends that Respondent’s use of the <buyamazonreviews.com> domain name violates state and federal law intended to protect customers from false and misleading product data. The Panel recognizes prior panels have found that illegal activity does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Nycomed Danmark ApS v. Diaz, D2006-0779 (WIPO Aug. 15, 2006) (concluding that the respondent’s use of a disputed domain name to operate a website promoting an illegal food supplement was 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)). The Panel here finds that Respondent has not established any bona fide offering of goods or services or any legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
As the Respondent has not provided a response to this action, the Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
The Complainant has proven this element.
Complainant contends that Respondent has displayed bad faith under Policy ¶ 4(b)(iii) by disrupting Complainant’s business. Specifically, Complainant claims that Respondent’s operation of a competing business at the resolving webpage is disruptive. The Panel again notes that the resolving webpage offers fraudulent reviews for products listed on Complainant’s webpage and that Complainant’s business under the AMAZON trademark is in part predicated upon customers being able to give and receive product feedback. Prior panels have found bad faith under Policy ¶ 4(b)(iii) where a confusingly similar domain name was used to run a competing business. See Spark Networks PLC v. Houlihan, FA 653476 (Nat. Arb. Forum Apr. 18, 2006) (holding that the respondent’s registration of a domain name substantially similar to the complainant’s AMERICAN SINGLES mark in order to operate a competing online dating website supported a finding that respondent registered and used the domain name to disrupt the complainant’s business under Policy ¶ 4(b)(iii)). The Panel here finds that the domain name is confusingly similar and that it is being used to run a competing business in bad faith under Policy ¶ 4(b)(iii).
Further, Complainant claims that Respondent has displayed bad faith under Policy ¶ 4(b)(iv) by attempting to commercially profit from a likelihood of confusion. Complainant argues that a likelihood of confusion exists because the webpage resolving from the disputed domain name contains competing services as well as Complainant’s trademarked logo which Internet users will likely believe shows an affiliation between Complainant and Respondent. According to Complainant, Respondent’s intent to profit is clear because Respondent is open as to its desire to sell positive Amazon reviews. The resolving webpage advertises online book club services and part of Complainant’s business under the AMAZON trademark relates to such services. Previous panels have found bad faith under Policy ¶ 4(b)(iv) where a confusingly similar domain name is used to directly compete with a complainant’s business. See MathForum.com, LLC v. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent registered a domain name confusingly similar to the complainant’s mark and the domain name was used to host a commercial website that offered similar services offered by the complainant under its mark). The Panel here finds that a likelihood of confusion exist, and that Respondent’s apparent profit as a result of it amounts to bad faith registration and use under Policy ¶ 4(b)(iv).
Respondent makes no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <buyamazonreviews.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: April 25, 2016
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