Amazon Technologies, Inc. v. Alexia MIA / person
Claim Number: FA1708001747110
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by Craig A. Beaker of Perkins Coie LLP, District of Columbia, USUA. Respondent is Alexia MIA / person (“Respondent”), France.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amazonoprime.com>, registered with Name.com, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 31, 2017; the Forum received payment on August 31, 2017.
On August 31, 2017, Name.com, Inc. confirmed by e-mail to the Forum that the <amazonoprime.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.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 September 6, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 26, 2017 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@amazonoprime.com. Also on September 6, 2017, 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 October 9, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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, Amazon Technologies, Inc., is an online retailer of goods. In connection with this business, Complainant uses the AMAZON PRIME mark to promote its goods and services. Complainant has rights in the AMAZON PRIME mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,419,886, registered Apr. 29, 2008). Respondent’s <amazonoprime.com> is confusingly similar to Complainant’s mark as it wholly incorporates the AMAZON PRIME mark, merely adding the letter “o” between AMAZON and PRIME and the “.com” generic top-level-domain (“gTLD”) to the end.
Respondent has no rights or legitimate interests in the <amazonoprime.com> domain name. Respondent is not commonly known by or affiliated with the AMAZON PRIME mark. Complainant has not authorized Respondent to use the AMAZON PRIME mark. Respondent does not use the disputed domain for any bona fide offering of goods or services. Respondent previously used the domain name in connection with phishing schemes. Currently, Respondent inactively holds the now parked domain name.
Respondent registered and uses the <amazonoprime.com> domain name in bad faith. Respondent used typosquatting to register the domain name. Respondent inactively holds the disputed domain name. Respondent has used the disputed domain name in connection with a phishing scheme. Finally, Respondent had actual knowledge of Complainant’s AMAZON PRIME mark because of the fame of Complainant’s marks and the typographical error used to register the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Amazon Technologies, Inc., is an online retailer of goods. In connection with this business, Complainant uses the AMAZON PRIME mark to promote its goods and services. Complainant has rights in the AMAZON PRIME mark based upon registration with the USPTO (Reg. No. 3,419,886, registered Apr. 29, 2008). Respondent’s <amazonoprime.com> is confusingly similar to Complainant’s mark.
Respondent, Alexia MIA / person, first registered <amazonoprime.com> on April 14, 2017.
Respondent has no rights or legitimate interests in the <amazonoprime.com> domain name. Respondent previously used the domain name in connection with a phishing scheme. Currently, Respondent inactively holds the now parked domain name.
Respondent registered and uses the <amazonoprime.com> 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(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 (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 rights in the AMAZON PRIME mark under Policy ¶ 4(a)(i) based upon registration with the USPTO. See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (Registration with the USPTO is sufficient to establish rights in a mark under Policy ¶ 4(a)(i).).
Respondent’s <amazonoprime.com> is confusingly similar to Complainant’s mark as it wholly incorporates the AMAZON PRIME mark, merely adding the letter “o” between AMAZON and PRIME and the “.com” gTLD to the end.
Respondent has no rights or legitimate interests in the <amazonoprime.com> domain name. Complainant has not authorized Respondent to use the AMAZON PRIME mark. Respondent is not commonly known by the disputed domain name. A privacy service was used by Respondent, but was lifted as a result of the commencement of this proceeding. The WHOIS information of record identifies the registrant as “Alexia MIA / person.” See Navistar International Corporation v. N Rahmany, FA 1620789 (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); see also State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA 1613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA 1621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name).
Respondent has failed to provide a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii). The <amazonoprime.com> domain name resolved to a webpage that used Complainant’s marks to phish for personal information through a fake survey. See Nordstrom, Inc. v. Above.com Domain Privacy, FA 1654490 (Forum February 1, 2016) (finding respondent failed under Policy ¶¶ 4(c)(i) and (iii) as it phished for internet users’ personal information via a fake survey).
Respondent’s <amazonoprime.com> domain name currently redirects users to a website that lacks any content. Failure to make active use of a confusingly similar domain name shows a lack of a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”).
Respondent used typosquatting to register the domain name. Respondent added the letter “o” between the AMAZON and PRIME in Complainant’s mark. Typosquatting of a complainant’s mark to register a domain name supports a finding that a respondent lacks a bona fide offering of goods or services or a legitimate noncommercial or fair use. See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”).
Respondent registered and used the <amazonoprime.com> domain name in bad faith by misleading users into believing Respondent is associated with Complainant to obtain users’ personal information. A phishing scheme shows registration and use in bad faith. See Citigroup Inc. v. Domain MANAGER / Domain Brokers, FA 1621817 (Forum July 13, 2015) (finding that the respondent’s use of a survey, in which Internet users were encouraged to enter personal information to complete, showed bad faith registration and use pursuant to Policy ¶ 4(a)(iii)).
Respondent currently uses the <amazonoprime.com> domain name to host a parked webpage. Failure to make an active use of a domain name shows bad faith under Policy ¶ 4(a)(iii).
Respondent registered and uses the <amazonoprime.com> domain name in bad faith under Policy ¶ 4(a)(iii) by engaging in typosquatting. Adorama, Inc. v. Moniker Privacy Services, FA 1610020 (Forum May 1, 2015) (“Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii).”).
Respondent had actual knowledge of Complainant’s AMAZON PRIME mark prior to registering the <amazonoprime.com> domain name. Therefore, Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amazonoprime.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: October 9, 2017
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