Amazon Technologies, Inc. v. Rosie Noble
Claim Number: FA1709001748000
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc, Texas, USA. Respondent is Rosie Noble (“Respondent”), Great Britain.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amzonaws.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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 7, 2017; the Forum received payment on September 7, 2017.
On September 8, 2017, Name.com, Inc. confirmed by e-mail to the Forum that the <amzonaws.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 8, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 28, 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@amzonaws.com. Also on September 8, 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 2, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (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 is one of the world’s largest online retailers, offering products and services to more than 100 countries around the globe. Amazon has expanded its retail offerings beyond books to a broad range of other products and services, including: Amazon Video; Amazon Music; AppStore for Android; Prime Photos and Prints; Fire Tablets; Fire TV; Echo & Alexa; AmazonFresh; Audible Audio Books; Movies, Music, Games; Electronics and Computers, Home, Garden & Tools; Beauty, Health & Grocery; Toys, Kids & Baby; Clothing, Shoes & Jewelry; Handmade, Sports & Outdoors; and Automotive & Industrial; Home Services; and Credit & Payment Products. Complainant registered the AMAZON (e.g. Reg. No. 2,832,943, registered Apr. 13, 2004) and AWS (e.g. Reg. No. 3,576,161, registered Feb. 17, 2009) marks with the United States Patent and Trademark Office (“USPTO”). Respondent’s <amzonaws.com> domain name is confusingly similar to Complainant’s marks as it misspells the AMAZON mark by removing the second letter “a,” contains the entire AWS mark, and appends the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the <amzonaws.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, the disputed domain name resolves to a pay-per-click page which includes links to alternative cloud services providers. Further, Respondent offers the disputed domain name for an unspecified price (the minimum offer is $250).
Respondent registered and uses the <amzonaws.com> domain name in bad faith. Respondent’s general offer to sell the disputed domain helps evince bad faith. Further, Respondent has registered numerous confusingly similar domain names in the past and has at least one adverse UDRP decision against it. Respondent also uses the disputed domain name to divert customers seeking Complainant to its own webpage, thus disrupting Complainant’s business. Relatedly, Respondent uses the disputed domain name to attract and monetize traffic through pay-per-click links, unfairly benefiting from the goodwill associated with Complainant’s trademarks. Additionally, by removing the letter “a” from Complainant’s AMAZON mark, Respondent has engaged in typosquatting. Finally, Respondent clearly knew of Complainant’s rights in the AMAZON and AWS marks as the disputed domain name contains both of the marks and because of Complainant’s world-wide fame.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <amzonaws.com> domain name.
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 registered the AMAZON (e.g. Reg. No. 2,832,943, registered Apr. 13, 2004) and AWS (e.g. Reg. No. 3,576,161, registered Feb. 17, 2009) marks with the USPTO. Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”). Accordingly, the Panel finds that Complainant has established rights in the AMAZON and AWS marks.
Complainant next argues that Respondent’s <amzonaws.com> domain name is confusingly similar to Complainant’s mark as it misspells the AMAZON mark by removing the second letter “a,” contains the entire AWS mark, and appends the gTLD “.com.” Similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶4(a)(i). See Hewlett-Packard Development Company, L.P. v. Yangxiaoyi / Qingyuan Tianheng Trading Company Ltd., FA 1625637 (Forum June 23, 2015) (“The combination of a complainant’s mark does not allow a respondent to avoid a finding of confusing similarity under Policy ¶4(a)(i).”); see also Myspace, Inc. v. Kang, FA 672160 (Forum June 19, 2006) (finding that the <myspce.com> domain name was confusingly similar to the complainant’s MYSPACE mark and the slight difference in spelling did not reduce the confusing similarity); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). The Panel finds that the <amzonaws.com> domain name is confusingly similar to Complainant’s marks under Policy ¶4(a)(i).
Complainant has proved this element.
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 (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 (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 contends that Respondent has no rights or legitimate interests in the <amzonaws.com> domain name. Where a response is lacking, relevant information includes the WHOIS and any other assertions by a complainant regarding the nature of its relationship with a respondent. See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). The WHOIS identifies “Rosie Noble / Rosie Noble” as the registrant. Complainant asserts that no evidence exists to show that Respondent has ever been legitimately known by the AMAZON or AWS marks. Panels may use these assertions as evidence of lacking rights or legitimate interests. See 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 alleges that Respondent has never been legitimately affiliated with Complainant, has never been known by the disputed domain name prior to its registration, and Complainant has not given Respondent permission to use the disputed domain name. Accordingly, the Panel agrees that Respondent is not commonly known by the <amzonaws.com> domain name under Policy ¶ 4(c)(ii).
Complainant also argues that Respondent uses the disputed domain name to resolve in a website that contains a series of hyperlinks redirecting users to services that directly compete with Complainant, presumably to commercially benefit from pay-per-click fees. Using a domain name to offer links to services in direct competition with a complainant does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). Complainant provides a screenshot of the resolving webpage for the disputed domain name, which displays links that allegedly redirect users to alternative cloud services providers in direct competition with Complainant’s AWS services. Accordingly, the Panel finds that Respondent does not make 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).
Further, Complainant claims that Respondent offers the disputed domain name for sale. Offering a confusingly similar domain name for sale to the public can evince a lack of rights and legitimate interests under Policy ¶ 4(a)(ii). See Enterprise Holdings, Inc. v. Huang Jia Lin, FA1504001614086 (Forum May 25, 2015) (“Accordingly, the Panel finds that Respondent’s general attempt to sell the disputed domain name is further evidence of Respondent’s lack of rights and legitimate interests under Policy ¶ 4(a)(ii).”). The screenshot provided by Complainant of the WHOIS webpage for the disputed domain name contains the message “AmZonaWs.com is for sale!”. The Panel agrees and finds that Respondent offers the disputed domain name for sale, indicative of possessing no rights and legitimate interests under Policy ¶ 4(a)(ii).
Complainant has proved this element.
Complainant claims that Respondent offers the <amzonaws.com> domain name for sale on the WHOIS webpage. Offering a confusingly similar domain name for sale can evince bad faith registration under Policy ¶ 4(b)(i). See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA1506001625332 (Forum July 17, 2015) (“A respondent’s general offer to sell a disputed domain name for an excess of out-of-pocket costs is evidence of bad faith under Policy ¶ 4(b)(i).”). Complainant provides a screenshot of the WHOIS webpage, which displays the message “AmZonaWs.com is for sale!” Accordingly, the Panel finds that Respondent’s offering of the domain name for sale to the general public is evidence of bad faith registration.
Complainant further argues that Respondent registered the <amzonaws.com> domain name in bad faith as Respondent has a propensity for registering confusingly similar domain names and has prior adverse UDRP decisions against it. A complainant may use prior adverse UDRP decisions against a respondent in the current proceeding to evince bad faith under Policy ¶ 4(b)(ii). See Fandango, LLC v. 21562719 Ont Ltd, FA1209001464081 (Forum November 2, 2012) (“Respondent’s past conduct and UDRP history establishes a pattern of registered domain names in bad faith under Policy ¶ 4(b)(ii).”). Complainant provides a list of some of the confusingly similar domain names registered by Respondent. Accordingly, the Panel finds that Respondent registered the disputed domain name in bad faith based on Respondent’s prior history of registering confusingly similar domain names.
Additionally, Complainant argues that Respondent registered and uses the <amzonaws.com> domain name in bad faith by disrupting Complainant’s business and creating a likelihood for confusion as to the source, sponsorship, affiliation, or endorsement of the disputed domain name to commercially benefit by offering competing goods or services. Using a disputed domain name that disrupts a complainant’s business and trades upon the goodwill of a complainant for commercial gain can evince bad faith under Policy ¶¶ 4(b)(iii) & (iv). See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”); see also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). As noted previously, Complainant provides a screenshot of the resolving webpage, which displays multiple links to alternative cloud storage services in competition with Complainant’s services provided under the AWS mark. Respondent presumably provides these links for pay-per-click fees. Accordingly, the Panel finds that Respondent disrupts Complainant’s business and attempts to commercially benefit from the use of Complainant’s mark in bad faith under Policy ¶¶ 4(b)(iii) & (iv).
Additionally, Complainant contends that by removing the letter “a” from the AMAZON mark, Respondent engages in typosquatting. A finding of typosquatting can evince bad faith under Policy ¶ 4(a)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (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).”). The Panel agrees and finds that Respondent’s removal of the letter “a” constitutes typosquatting, further evincing bad faith by Respondent.
Finally, Complainant claims that Respondent had actual knowledge of Complainant’s rights in the AMAZON and AWS marks. Actual knowledge can adequately evince 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 contends that Respondent must have had actual knowledge of Complainant’s rights in the AMAZON and AWS marks as the disputed domain name contains both of the marks and because of Complainant’s world-wide fame. The Panel agrees with Complainant and finds that Respondent did have actual knowledge of Complainant’s marks when registering the <amzonaws.com> domain name, demonstrating bad faith under Policy ¶ 4(a)(iii).
Complainant has proved this element.
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 <amzonaws.com> domain name be TRANSFERRED from Respondent to Complainant.
__________________________________________________________________
Hon. Karl V. Fink (Ret.) Panelist
Dated: October 2, 2017
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