Amazon Technologies, Inc. v. David sutton
Claim Number: FA1807001795497
Complainant is Amazon Technologies, Inc. ("Complainant"), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is David sutton ("Respondent"), New Jersey, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amazonrenewed.com>, 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 6, 2018; the Forum received payment on July 6, 2018.
On July 6, 2018, GoDaddy.com, LLC confirmed by email to the Forum that the <amazonrenewed.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 July 6, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 26, 2018 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@amazonrenewed.com. Also on July 6, 2018, the Written Notice of the Complaint, notifying Respondent of the email 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 July 30, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 and its licensees and predecessors in interest have used the AMAZON and AMAZON.COM marks since 1995 in connection with various products and services, including Amazon.com, the most-viewed shopping website in the world. Complainant asserts that the marks have become famous as a result of Complainant's extensive advertising and use, citing surveys that rank Complainant among the most well-known brands globally and prior decisions under the Policy that have found the marks to be famous. The AMAZON and AMAZON.COM marks are registered in the United States and other jurisdictions around the world.
On or shortly before June 26, 2017, Complainant launched a service called Amazon Renewed, offering certified "like new" products with a minimum 90-day supplier warranty.
The disputed domain name <amazonrenewed.com> was registered via a privacy registration service on June 26, 2018. The domain name redirects to a Walmart.com page featuring refurbished products similar to those available from Complainant's Amazon Renewed service. Complainant states that Respondent is not licensed to use Complainant's marks and is not an authorized vendor, supplier, or distributor of Complainant's goods and services. Complainant states further that that Respondent is offering the disputed domain name for sale for $35,000, citing a statement to that effect displayed on the DomainTools Whois Record for the domain name.
Complainant contends on the above grounds that the disputed domain name <amazonrenewed.com> is confusingly similar to its AMAZON and AMAZON.COM marks; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 <amazonrenewed.com> incorporates Complainant's registered AMAZON and AMAZON.COM trademarks, adding only the generic term "renewed" and, in one instance, the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's marks. See, e.g., Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (finding <amazonmerchs.com> confusingly similar to AMAZON); Amazon Technologies, Inc. v. Abraham Greenboim, FA 1717488 (Forum Mar. 23, 2017) (finding <amazongenius.com> confusingly similar to AMAZON); Amazon.com, Inc. v. Michele Dinoia c/o SZK.com, FA 536549 (Forum Sept. 26, 2005) (finding <amazonappliances.com> and similar domain names confusingly similar to AMAZON.COM).
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered marks without authorization, and it is being used to promote competing products, presumably generating referral fees for Respondent. Such use does not give rise to rights or legitimate interests in the domain name. See, e.g., Amazon Technologies, Inc. v. Thejeswar Reddy, FA 1721564 (Forum Apr. 18, 2017) (finding lack of rights or legitimate interests where domain name incorporating trademark was used to promote competing products); Skechers U.S.A., Inc. & Skechers U.S.A., Inc. II v. Lin Yanxiao, FA 1674758 (Forum June 10, 2016) (finding lack of rights or legitimate interests where domain name incorporating trademark was redirected to third party retailers' websites, presumably generating referral fees).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(i) of the Policy, bad faith may be shown by evidence that a domain name was acquired "primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent's] documented out-of-pocket costs directly related to the domain name." Under paragraph 4(b)(iii), bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent's public offer to sell the disputed domain name for $35,000, a value likely reflecting the domain name's incorporation of Complainant's famous marks, is indicative of bad faith under paragraph 4(b)(i). See, e.g., Amazon Technologies, Inc. v. Robert Nichols, FA 1693499 (Forum Oct. 20, 2016) (inferring bad faith from offer to sell <amazonvehicles.com> and <amazoncarsandtrucks.com> for $75,000). Respondent's use of the domain name to redirect traffic to competing products on a third-party site, presumably in an attempt to generate referral fees, is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv). See, e.g., Skechers U.S.A., Inc. II v. Lin Yanxiao, supra (finding bad faith under similar circumstances). Under the circumstances presented here, and in particular considering the timing of Respondent's registration of the disputed domain name, the Panel infers that Respondent registered the domain name with Complainant's marks and these uses in mind. See, e.g., Amazon Technologies, Inc. v. Robert Nichols, supra (finding opportunistic bad faith where <amazonvehicles.com> and <amazoncarsandtrucks.com> were registered two days after Amazon Vehicles service was announced).
For the reasons set forth above, the Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amazonrenewed.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: July 30, 2018
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