Amazon Technologies, Inc. v. Mark Curran
Claim Number: FA1802001770903
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Mark Curran (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amazonsmilecode.com>, registered with Tucows Domains Inc..
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 7, 2018; the Forum received payment on February 7, 2018.
On February 8, 2018, Tucows Domains Inc. confirmed by e-mail to the Forum that the <amazonsmilecode.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 February 8, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 28, 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@amazonsmilecode.com. Also on February 8, 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 formal response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default. However, Respondent did send two e-mails to the Forum, see below.
On March 5, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that uses its AMAZON and AMAZON.COM trademarks in connection with its products and services as one of the world’s largest online retailer, offering products to consumers in more than 100 countries around the globe. Complainant owns registrations for its AMAZON and AMAZON.COM marks in the United States dating back to 2004 and 1997, respectively. On or before January 31, 2018, various news sources published stories about Amazon SmileCodes, a new service that allows shoppers to access product information at Amazon by scanning codes they see in the physical world. Respondent registered the disputed domain just days later – on February 7, 2018.
Complainant alleges that the disputed domain name is confusingly similar to Complainant’s mark because the domain name incorporates both marks entirely, adds generic or descriptive terms, and adds a generic top-level domain (“gTLD”) in the case of the AMAZON mark. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Based on the WHOIS information of record, which lists the registrant as “Mark Curan,” and Respondent’s lack of authorization and license, Respondent is not commonly known by the disputed domain name. Further, Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Rather, the disputed domain name resolves to a page indicating the domain name is for sale for GBP 2500. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered the disputed domain name in bad faith. Respondent’s effort to sell the disputed domain name demonstrates bad faith per Policy ¶ 4(b)(i). Additionally, Respondent’s opportunistic registration and actual knowledge of Complainant’s rights in the AMAZON marks is indicative of bad faith per Policy ¶ 4(a)(iii). Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a formal Response in this proceeding. The content of Respondent’s two e-mails to the Forum is reproduced verbatim below.
I am glad finally I can put my complaint on Amazon in a way to get it published...you should have checked with Amazon, I am severely disabled and was conned out of 2000 pounds by comlaude pretending they represented someone else...Stephen Coates at Amazon is well aware of the situation and various Amazon registrations I now own all in an attempt to get my money...I was and am more than willing to have all transferred to Amazon for that amount, if you'd rather waste money getting them and have my response which is damning of both comlaude and Amazon in their treatment of me knowing I was disabled published then I'll respond. I requested 2500 on sedo which was the 2000 I am out after fees...I would of then given Amazon the rest that Stephen coates knows I have...I don't want anything other than the money conned out of me... Please confirm you want me to go ahead with my response publicly? As outlined above or wether a different solution would be better for yourself, me and definitely Amazon? I will go ahead with response upon a swift response from you?
Am in process of getting response together...but need it to be worded perfect to include a couple of things for public view, as well as my treatment...of which Steve Coates is well aware, as is Jeff Bezos who passed it to him, apparently neither care how their employed web companies treat the disabled. Also need to enquire with relevant authority how amazon have access to a whois record as sent to domain dispute that does not incorporate any privacy that anyone has requested...seems to me that cannot be legal. Also need to enquire with relevant authority how Richard law group are able to file trademarks on behalf of Amazon but appear to me to link them to various fake companies all listed in Wilmington, in an attempt to hide Amazons name and connection with them, the majority by Richard Struthers...seems to me that also cannot be legal. Seeing as no one wants to help me, don't see why I shouldn't question these activities so official response will come shortly.
Complainant owns the marks AMAZON and AMANON.COM with rights dating back to, respectively, 2004 and 1997. Complainant is one of the world’s largest online retailers, offering products to consumers in more than 100 countries around the globe. Complainant’s marks are famous.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The disputed domain name resolves to a web page that offers the domain name for sale at a price above out-of-pocket costs. Respondent knew of Complainant’s new service Amazon SmileCodes when he registered the disputed domain name. Respondent knew of Complainant’s marks when he registered the disputed 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.”).
The disputed domain name is confusingly similar to Complainant’s AMAZON and AMAZON.COM marks because the marks are incorporated entirely, with the addition of the generic or descriptive terms “smile” and “smilecode,” and the addition of the gTLD “.com.” Incorporating a mark entirely, adding generic or descriptive terms, and adding a gTLD do not typically distinguish a domain name from a finding of confusing similarity. 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). Consequently, the Panel finds that the disputed domain name is confusingly similar to Complainant’s marks for the purposes of Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its marks. Respondent is not known by the disputed 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). Here, the WHOIS identifies “Mark Curan” as the registrant. Complainant asserts that no evidence exists to show that Respondent has ever been legitimately known by the AMAZON 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). Accordingly, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services, or legitimate noncommercial or fair use as Respondent offers the domain name for sale: the resolving webpage displays the message “amazonsmilecode.com is available for purchase - Sedo.com,” which offers the domain at a “BuyNow” price of 2500 GBP. Offering to sell a confusingly similar domain name can show that a respondent lacks rights and legitimate interests in a domain name. See AOL Inc. v. YourJungle Privacy Protection Service aka Whois Agent, FA1312001533324 (Forum Jan. 17, 2014) (“Respondent has offered the <aoljobsweek.com> domain name for sale to the general public, which demonstrates that Respondent lacks rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”). Consequently, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent has offered to sell the disputed domain name for an amount in excess of out-of-pocket costs. This is evidence of bad faith per Policy ¶ 4(b)(i). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007) (concluding that the respondent registered and was using the <gwbakeries.mobi> domain name in bad faith according to Policy ¶ 4(b)(i) where it offered it for sale for far more than its estimated out-of-pocket costs it incurred in initially registering the disputed domain name). Accordingly, the Panel finds that Respondent’s efforts to sell the at-issue domain name for excessive out-of-pocket costs demonstrates bad faith per Policy ¶ 4(b)(i).
Further, Respondent’s registration and use was opportunistic because registration occurred just days after Complainant’s “Amazon SmileCode” services were first publicized. Past Panels have found opportunistic bad faith where a respondent registers a domain name days after a complainant’s announcement of a service. See Amazon Technologies, Inc. v. harshit dhingaun, FA1505001619696 (Forum June 10, 2015) (holding that the respondent had demonstrated opportunistic bad faith according to Policy ¶ 4(a)(iii), when it registered the <amazonfashionindia.com> and <amazonindiafashion.com> domain names within days after the announcement of the complainant’s sponsorship of India Fashion Week). Therefore, the Panel finds bad faith registration and use also on these grounds.
Finally, Respondent admits that he registered the disputed domain name with actual knowledge of Complainant’s rights. Actual knowledge of a complainant's rights in a 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). Accordingly, the Panel finds bad faith registration and use under Policy ¶ 4(a)(iii) because Respondent did have actual knowledge of Complainant’s mark.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amazonsmilecode.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: March 5, 2018
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