Amazon Technologies, Inc. v. Raul Martinez
Claim Number: FA1804001784099
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Raul Martinez (“Respondent”), Nevada, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amazoncapitalgroup.com>, registered with GoDaddy.com, LLC.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 27, 2018; the Forum received payment on April 27, 2018.
On April 30, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <amazoncapitalgroup.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. 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 May 1, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 21, 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@amazoncapitalgroup.com. Also on May 1, 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 May 23, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin nas 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
1. Respondent’s <amazoncapitalgroup.com> domain name is confusingly similar to Complainant’s AMAZON mark.
2. Respondent does not have any rights or legitimate interests in the <amazoncapitalgroup.com> domain name.
3. Respondent registered and uses the <amazoncapitalgroup.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Amazon Technologies, Inc., is one of the world’s largest online retailers. Complainant holds a registration for its AMAZON mark based with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,832,943, registered Apr. 13, 2004).
Respondent registered the <amazoncapitalgroup.com> domain name on January 28, 2015, and uses it to conduct a phishing scheme and to promote merchant loan services that compete with Complainant’s merchant loan services.
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 Panel finds that Complainant’s registration of the AMAZON mark with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4(a)(i). See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark).
Respondent’s <amazoncapitalgroup.com> domain name incorporates the AMAZON mark and adds the generic phrase “capital group” and the gTLD “.com.” Such changes are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. 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). The Panel thus finds that Respondent’s <amazoncapitalgroup.com> domain name is confusing similar to Complainant’s AMAZON mark.
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Complainant argues that Respondent has no rights or legitimate interests in the <amazoncapitalgroup.com> domain name, and is not commonly known by the disputed domain name. Complainant has not authorized Respondent to use the AMAZON mark in any way. The Panel notes that Respondent initially used a privacy service, but the WHOIS information of the record now identifies Respondent as “Raul Martinez.” The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent is not commonly known by the <amazoncapitalgroup.com> domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”); see also Kohler Co. v. Privacy Service, FA1505001621573 (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).
Complainant also argues that Respondent’s lack of rights or legitimate interests in the <amazoncapitalgroup.com> domain name is demonstrated by its failure to use the name to make a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Complainant shows that the disputed domain name resolves to a website which is being used to promote “Merchant Cash Advance” loan services that directly compete with Complainant’s merchant loan services. The Panel finds that this use does not constitute a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (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).”).
Complainant further asserts that Respondent uses the disputed domain name to phish for Internet users’ personal information. Use of a domain name to phish for Internet users personal or financial information is also not a bona fide offering or fair use under Policy ¶¶ 4(c)(i) or (iii). See Allianz of Am. Corp. v. Bond, FA 690796 (Forum June 12, 2006) (holding that the respondent’s use of the <allianzcorp.biz> domain name to fraudulently acquire the personal and financial information of Internet users seeking Complainant’s financial services was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii). Complainant demonstrates that Respondent is attempting to solicit sensitive personal and business information from Internet users seeking merchant loan services and encourages prospective applicants to forward their information to Respondent via unsecure email. Therefore, the Panel finds that Respondent failed to use the <amazoncapitalgroup.com> domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use, and thus has no rights under Policy ¶¶ 4(c)(i) or (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent registered and is using the <amazoncapitalgroup.com> domain name in bad faith by promoting competing merchant loan services and disrupting Complainant’s business. The Panel agrees and finds that Respondent has registered and used the domain name in bad faith under Policy ¶ 4(b)(iii). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum January 9, 2018) (Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)).
Complainant argues that Respondent uses the disputed domain name to create confusion with Complainant’s AMAZON mark to attract Internet users for its benefit. Use of a domain name to create confusion as to the source, sponsorship, affiliation or endorsement therein for commercial gain is evidence of bad faith under Policy ¶ 4(b)(iv). See MathForum.com, LLC v. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent registered a domain name confusingly similar to the complainant’s mark and the domain name was used to host a commercial website that offered similar services offered by the complainant under its mark). Accordingly, the Panel finds that Respondent uses the disputed domain name to create confusion with Complainant’s mark for commercial gain, in bad faith under Policy ¶ 4(b)(iv).
Complainant also contends that in light of the fame and notoriety of Complainant’s AMAZON mark, it is inconceivable that Respondent could have registered the <amazoncapitalgroup.com> domain name without actual knowledge of Complainant’s rights in the mark. The Panel agrees and finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to registering the disputed domain name, which is evidence of bad faith under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). A respondent may have actual knowledge of a complainant’s rights in a mark when a complainant’s mark is famous. See Victoria’s Secret Stores Brand Mgmt., Inc. v. Michael Bach, FA 1426668 (Forum March 2, 2012) (“Although Complainant has not submitted evidence indicating actual knowledge by Respondent of its rights in the trademark, the Panel finds that, due to the fame of Complainant’s [VICTORIA’S SECRET] mark, Respondent had actual notice at the time of the domain name registration and therefore registered the domain name in bad faith under Policy ¶ 4(a)(iii).”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amazoncapitalgroup.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: May 24, 2018
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