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Amazon Technologies, Inc. v. David Latin
Claim Number: FA1711001760033
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by Craig A. Beaker of Perkins Coie, Washington D.C., USA. Respondent is David Latin (“Respondent”), Arizona, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <kindlehelp.info>, <kindlesupport.website>, <kindletab.online>, <usakindlehelp.xyz>, and <uskindlehelp.xyz>, registered with GoDaddy.com, LLC.
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 November 27, 2017; the Forum received payment on November 27, 2017.
On November 28, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <kindlehelp.info>, <kindlesupport.website>, <kindletab.online>, <usakindlehelp.xyz>, and <uskindlehelp.xyz> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 November 28, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 18, 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@kindlehelp.info, postmaster@kindlesupport.website, postmaster@kindletab.online, postmaster@usakindlehelp.xyz, postmaster@uskindlehelp.xyz. Also on November 28, 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 December 20, 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant uses its KINDLE mark in commerce for downloadable electronic publications, software applications, computer software services, telecommunications, retail store services featuring books and magazines, and other related goods and services. Complainant registered the KINDLE mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 3,694,267, registered Oct. 6, 2009). Respondent’s domain names are confusingly similar to Complainant’s mark as they wholly incorporate Complainant’s KINDLE mark and merely add the generic terms “us,” “usa,” “help,” “support,” and “tab” as well as the generic top-level domains (“gTLD”) “.info,” “.website,” “.online,” and “.xyz.”
Respondent has no rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the disputed domain names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent claims to be “Amazon Support” in order to deceive visitors into believing that Respondent is, in fact, affiliated or associated with Complainant. It appears that Respondent is using the disputed domain names to impersonate Complainant in order to obtain personal or financial information from Internet users.
Respondent registered and uses the disputed domain names in bad faith. Respondent uses the domain names to disrupt Complainant’s business by redirecting Internet users to websites that state “Welcome to Amazon Support” to confuse users into believing that Respondent is affiliated or associated with Complainant. Respondent presumably creates this confusion to further a fraudulent phishing scheme to obtain users’ personal information. Further, Respondent’s use of the KINDLE mark in the disputed domain names, and the AMAZON mark on the websites associated with the domain names, shows that Respondent had actual knowledge of Complainant’s rights in the KINDLE mark prior to their registration.
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 <kindlehelp.info>, <kindlesupport.website>, <kindletab.online>, <usakindlehelp.xyz>, and <uskindlehelp.xyz> domain names.
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 claims to have registered the KINDLE mark with the USPTO (e.g. Reg. No. 3,694,267, registered Oct. 6, 2009). 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 KINDLE mark for the purposes of Policy ¶ 4(a)(i).
Complainant next argues that Respondent’s disputed domain names are confusingly similar to Complainant’s mark as they wholly incorporate Complainant’s KINDLE mark and merely add the generic terms “us,” “usa,” “help,” “support,” and “tab” as well as the gTLDs “.info,” “.website,” “.online,” and “.xyz.” Similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.); 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 disputed domain names are confusingly similar to the KINDLE mark 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 disputed domain names. 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 “David Latin” as the registrant for all of the domain names. Complainant asserts that no evidence exists to show that Respondent has ever been legitimately known by the KINDLE mark. 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 domain names prior to their registration, and Complainant has not given Respondent permission to use the KINDLE mark in any domain name. Accordingly, the Panel finds that Respondent is not commonly known by the KINDLE mark or the disputed domain names under Policy ¶ 4(c)(ii).
Further, Complainant argues that Respondent attempts to deceive visitors into believing that Respondent is affiliated or associated with Complainant to obtain personal or financial information from Internet users. Passing off as a complainant to further a phishing scheme can evince a failure to make a bona fide offering of goods or services or legitimate noncommercial or fair use. See Google Inc. v. Pritam Singh / Pandaje Technical Services Pvt Ltd., FA 1660771 (Forum March 17, 2016) (agreeing that respondent has not shown any bona fide offering of goods or services or any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii) as the respondent used the complainant’s mark and logo on a resolving website containing offers for technical support and password recovery services, and soliciting Internet users’ personal information). Complainant provides screenshots of the resolving webpages for the domain names, all of which appear to contain the message “Welcome to Amazon Support. We are here to help. 1-877-466-1985,” along with a warning message to indicate potential fraudulent activity. Accordingly, the Panel finds that Respondent uses the domain names in connection with fraudulent activity, failing to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
Complainant has proved this element.
Complainant argues that Respondent uses the domain names to disrupt Complainant’s business by redirecting Internet users to websites purporting to be Complainant to confuse users into believing that Respondent is affiliated or associated with Complainant. Using a disputed domain name that trades upon the goodwill of a complainant for commercial gain can evince bad faith under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting). The screenshots provided by Complainant of the resolving domains contain the message “Welcome to Amazon Support. We are here to help. 1-877-466-1985,” which Complainant argues furthers confusion among Internet users. Accordingly, the Panel finds that Respondent attempted to benefit off Complainant’s mark, presumably for commercial gain, in bad faith under Policy ¶ 4(b)(iv).
Complainant argues that Respondent engages in a phishing scheme to obtain personal or financial information of users seeking Complainant. Using a confusingly similar domain name to phish for personal or financial information can provide evidence of bad faith registration and use within the meaning of Policy ¶ 4(a)(iii). See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”). As noted previously, Complainant provides screenshots of the resolving webpages for the domain names, all of which appear to contain the message “Welcome to Amazon Support. We are here to help. 1-877-466-1985,” along with a warning message to indicate potential fraudulent activity. Thus, the Panel finds that Respondent uses the domain names in connection with a fraudulent phishing scheme in bad faith under Policy ¶ 4(a)(iii).
Finally, Complainant claims that Respondent had actual knowledge of Complainant’s KINDLE mark. Actual knowledge in a complainant’s mark prior to registering a confusingly similar domain name can 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 the mark based on Respondent’s use of the KINDLE mark in the disputed domain names, and the AMAZON mark on the websites associated with the domain names. Accordingly, the Panel agrees with Complainant and finds that Respondent did have actual knowledge of Complainant’s mark, 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 <kindlehelp.info>, <kindlesupport.website>, <kindletab.online>, <usakindlehelp.xyz>, and <uskindlehelp.xyz>, domain names be TRANSFERRED from Respondent to Complainant.
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