Amazon Technologies, Inc. v. ifechukwu mojekwu / shell
Claim Number: FA1801001766154
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is ifechukwu mojekwu / shell (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amazonbitx.com>, registered with NameCheap, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 9, 2018; the Forum received payment on January 9, 2018.
On January 10, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <amazonbitx.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 January 10, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 30, 2018 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@amazonbitx.com. Also on January 10, 2018, 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 February 5, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant, Amazon Technologies, Inc. uses the AMAZON mark to provide and market products and services.
Complainant has rights in the AMAZON mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,078,496, registered July 15, 1997).
Respondent’s <amazonbitx.com> is confusingly similar as it contains Complainant’s AMAZON mark in its entirety, merely adding the letter sequence “bitx” along with the generic top level domain (“gTLD”) “.com.”
Respondent does not have rights or legitimate interests in the <amazonbitx.com> domain name. Respondent is not commonly known by the disputed domain name and Complainant has not granted respondent permission or license to use the AMAZON mark for any purpose. Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent is using the <amazonbitx.com> domain name to pass itself off as Complainant to offer products and services that are in direct competition with Complainant. In addition, Respondent is attempting to phish for internet users’ sensitive information.
Respondent has registered and used the <amazonbitx.com> domain name in bad faith. Respondent is attempting to attract for commercial gain Internet users to Respondent’s website by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the web site or location of a product or service on Respondent’s website or location. Further, Respondent is attempting to disrupt Complainant’s business. Also, Respondent is attempting to phish for user’s information. Respondent has employed a privacy service to hide its identity. Respondent has failed to respond to cease-and-desist letters. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the AMAZON mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the AMAZON mark through the registration of such mark with the USPTO.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the AMAZON trademark.
Respondent uses the domain name to address a website offering an online forum concerning money transfers and solicits investments with a guaranteed return, all while using Complainant’s name and logo and indicating it is Complainant’s partner when it is not. Respondent’s further uses the website to phish for private financial information.
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.”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant demonstrates rights in its AMAZON mark by showing it registered such mark with the USPTO. See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Respondent’s <amazonbitx.com> domain name contains Complainant’s entire AMAZON trademark appended with the term or text string “bitx” followed by the top-level domain name, here “.com”. The differences between Complainant’s trademark and Respondent’s <amazonbitx.com> domain name fail to distinguish the domain name from Complainant’s mark for the purpose of Policy ¶ 4(a)(i). Under the Policy, the inclusion of a generic term or a short text string such as “bitx” generally in the at-issue domain name does nothing to differentiate the domain name from Complainant’s trademark. Further, the top-level domain name is of no consequence regarding Policy ¶ 4(a)(i) analysis. Therefore, the Panel concludes that Respondent’s <amazonbitx.com> domain name is identical to Complainant’s AMAZON trademark. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist 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.).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
WHOIS information for the at-issue domain name identifies the domain name’s registrant as “ifechukwu mojekwu / shell” and the record before the Panel contains no evidence that otherwise tends to prove that Respondent is commonly known by the <amazonbitx.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <amazonbitx.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Furthermore, Respondent uses the <amazonbitx.com> domain name to attempt to pass itself off as an associate or agent of Complainant and offer products and services that compete with those offered by Complainant. Respondent also uses the domain name to facilitate a phishing scheme whereby Respondent seeks to fraudulently collect private financial information from internet users. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶4(c)(i), nor a non-commercial or fair use under Policy ¶4(c)(iii). See Microsoft Corp. v. lijiuliang, FA0912001300266 (Forum Feb. 11, 2010) (“Respondent’s attempt to pass itself off as Complainant by imitating Complainant’s official website … is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)”); see also, General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”); see also, Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (using the disputed domain name for a scam was held to constitute “clear and convincing proof that Respondent lacks rights and legitimate interests pursuant to Policy ¶ 4(a)(ii)”).
Given the foregoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶4(a)(ii).
The at-issue domain name was registered and used in bad faith. As discussed below, Policy ¶ 4(b) specific bad faith circumstances as well as other circumstances lead the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4 (a)(iii) of the Policy.
As mentioned above, Respondent registered and uses the <amazonbitx.com> domain name to pass itself off as Complainant. Respondent, through the at-issue domain name and additional use of Complainant’s mark and logo in conjunction with the website addressed by the <amazonbitx.com> domain name, creates the false impression that Respondent may be a partner or associate of Complainant and that the <amazonbitx.com> website is sponsored by Complainant, when it is not. Using the confusingly similar domain name to pass itself off as an assoicate of Complainant and trade upon Complainant’s goodwill for commercial gain demonstrates Respondent’s bad faith under Policy ¶ 4(b)(iv) and otherwise. See Am. Online, Inc. v. Miles, FA 105890 (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.”); 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).”). Respondent’s use of the domain name further demonstrates Respondent’s bad faith under Policy ¶ 4(b)(iii) as it disrupts Complainant business by diverting consumers seeking Complainant’s services and forums to alternatives offered by Respondent. See Microsoft Corp. v. Lorge, FA1103001380106 (Forum Apr. 25, 2011) (featuring of Complainant’s competitors may cause some Internet users to purchase products from a competitor instead of from the Complainant which disrupts Complainant’s business and is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii)). Likewise, Respondent’s bad faith is evident from Respondent’s phishing scheme aimed at misleading visitors to the <amazonbitx.com> website into disclosing personal private data. Kaiser Foundation Health Plan, Inc. v. Hines, FA1508001632754 (Forum Sept. 18, 2015) (“Respondent’s use of the <kaiserpermanentegroup.com> domain name to engage in a phishing scheme is in itself evidence of Respondent’s bad faith”); Morgan Stanley v. Zhang Sheng Xu / Zhang Sheng Xu, FA1501001600534 (Forum Feb 16, 2015) (“Respondent’s use of the disputed domain name in furtherance of a phishing scheme constitutes bad faith registration and use pursuant to Policy ¶ 4(a)(iii)”);
Finally, Respondent registered <amazonbitx.com> knowing that Complainant had trademark rights in the AMAZON mark. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark, from Respondent’s use of the domain name to fake an association with Complainant, and from Respondent’s use of the domain name in offering services that compete with those offered by Complainant. Therefore it is clear that Respondent intentionally registered the at-issue domain name to improperly exploit its trademark value, rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <amazonbitx.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amazonbitx.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: February 5, 2018
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page