Amazon Technologies, Inc. v. yi nan sun
Claim Number: FA1810001810408
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas. USA. Respondent is yi nan sun (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amazonchief.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of 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 October 4, 2018; the Forum received payment on October 4, 2018.
On October 5, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <amazonchief.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 October 9, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 29, 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@amazonchief.com. Also on October 9, 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 October 30, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <amazonchief.com> domain name is confusingly similar to Complainant’s AMAZON mark.
2. Respondent does not have any rights or legitimate interests in the <amazonchief.com> domain name.
3. Respondent registered and uses the <amazonchief.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Amazon Technologies, Inc., is a leading online retailer worldwide. Complainant holds a registration for the AMAZON mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,832,943 registered Apr. 13, 2004).
Respondent registered the <amazonchief.com> domain name on July 18, 2018, and uses it to manipulate Complainant’s search engine.
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 has rights in the AMAZON mark upon its registration of the mark with the USPTO. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Complainant provides a copy of its registration of the AMAZON mark with the USPTO (e.g., Reg. No. 2,832,943 registered Apr. 13, 2004).
Respondent’s <amazonchief.com> domain name incorporates the AMAZON mark and simply adds generic term and a gTLD. These changes do not distinguish a mark from a domain name under Policy ¶ 4(a)(i). See Morgan Stanley v. Eugene Sykorsky / private person, FA 1651901 (Forum Jan. 19, 2016) (concluding that the addition of a generic term and top level domain to a trademark is inconsequential under a Policy ¶ 4(a)(i) analysis). Therefore, the Panel finds that Respondent’s <amazonchief.com> domain name is confusingly similar to Complainant’s AMAZON mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
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 lacks rights or legitimate interests in <amazonchief.com> domain name because Respondent is not licensed or authorized to use the AMAZON mark and is not commonly known by the disputed domain name. The WHOIS information of record identifies Respondent as “yi nan sun.” The Panel therefore finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.); see also 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 contends that Respondent fails to use the <amazonchief.com> domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Complainant provides screenshots of the webpages associated with the disputed domain name, which features advertisements offering increased sales and product ranking boosts, in an attempt to manipulate Complainant’s search engine. The Panel finds that this use is not a bona fide offering of goods and services or for a legitimate noncommercial or fair use per 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 also shows that Respondent encourages sellers to manipulate their own search rankings using fake traffic, which violates U.S. federal and state laws as well as Complainant’s terms of service. This is further evidence that Respondent fails to use the disputed domain name for a bona fide offering of goods and services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Amazon Technologies, Inc. v. Moore, FA1603001666264 (Forum Apr. 25, 2016) (finding that selling reviews using the domain< buyamazonreviews.com>, in violation of Amazon user agreements and state and federal law intended to protect customers from false and misleading product data, was not a bona fide offering of goods or services or any legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii)).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant demonstrates that Respondent registered and uses the <amazonchief.com> domain name in bad faith by disrupting Complainant’s business and promoting services that deceive Complainant’s customers by artificially inflating search rankings. The Panel finds that this constitutes evidence of bad faith under Policy ¶ 4(b)(iii). See Walgreen Co. v. MUHAMMAD SALEEM / WALGREENSGENERAL TRADING LLC, FA 1790453 (Forum Jul. 1, 2018) (“Respondent’s registration and use of the confusingly similar <walgreensshop.com> domain name in furtherance of trading competitively on Complainant’s WALGREENS trademark demonstrates Respondent’s bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv).”).
Complainant alleges that Respondent’s attempts to commercially gain by passing off as Complainant violates United States federal and state laws intended to protect consumers. Use of a domain name to pass off as complainant in furtherance of a fraudulent scheme is evidence of bad faith under Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also Google Inc. v. Domain Admin, FA 1502001605239 (Forum Mar. 22, 2015) (finding that use of a disputed domain name to aid illegal activities under Complainant’s trademark suggests Respondent’s bad faith). Accordingly, the Panel finds that Respondent uses the disputed domain name to pass off as Complainant in furtherance of fraudulent activity, bad faith under Policy ¶ 4(b)(iv).
Complainant states that Respondent violates Complainant’s terms of service by attempting to manipulate sales rankings. The Panel finds that this is further evidence of bad faith under Policy ¶ 4(a)(iii). See Google Inc. v. Onur Koycegiz, FA1741705 (Forum Aug. 25, 2017) (finding use of the <10youtube.com > domain name in association with a website that enabled download of content from Google’s YouTube website in violation of Google’s YouTube Terms of Service to constitute bad faith use and registration under the Policy); see also Google Inc. v David Miller, FA1067791 (Forum Oct. 24, 2007) (finding use of the <youtubex.com> domain name in association with a website that enabled download of video clips from Google’s YouTube website in violation of Google’s YouTube Terms of Service to constitute bad faith use and registration under the Policy).
Complainant also asserts that Respondent had actual knowledge of Complainant’s rights in the mark prior to registering the disputed domain name. Due to the fame and widespread use of the AMAZON mark, as well as Respondent’s use of the disputed domain name, the Panel agrees and finds further bad faith under Policy ¶ 4(a)(iii). See Snap Inc. v. Deepika Priyadarshinie / entsl, FA 1788600 (Forum June 21, 2018) (finding the respondent had actual knowledge of the complainant and its rights in the claimed mark due to the fame of the mark, established by the complainant’s submission of numerous articles regarding the success of the complainant’s product).
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 <amazonchief.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: October 31, 2018
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