Amazon Technologies, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA1811001819070
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amazøn.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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 30, 2018; the Forum received payment on November 30, 2018.
On December 3, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <amazøn.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 December 4, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 24, 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@amazøn.com. Also on December 4, 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 December 26, 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. is one of the world’s largest online retailers, offering products and services to more than one-hundred countries around the globe.
Complainant has rights in the (1) AMAZON and (2) AMAZON.COM marks based upon its registration of the marks with the United States Patent and Trademark Office (“USPTO.
Respondent’s <amazøn.com> domain name is confusingly similar to Complainant’s AMAZON and AMAZON.COM marks, as the domain name is an internationalized domain name (“IDN”) comprising the PUNNYCODE translation of [xn--amazn-yua.com] which is identical to the marks differing only by exchanging the “o” for the Unicode letter “ø.”
Respondent has no rights or legitimate interests in the <amazøn.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the AMAZON and AMAZON.COM marks in any manner. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the disputed domain name redirects browsers alternatively to: pay-per-click pages, website hijacking warnings, and fake support pages that phish for login credentials or generate fake malware warnings.
Respondent registered and is using the <amazøn.com> domain name in bad faith because Respondent is involved in a pattern of bad faith registration and has been found in bad faith in more than a dozen UDRP decisions. Additionally, Respondent attempts to commercially gain by promoting alternative online retailers and phishing/support/malware schemes. Furthermore, promoting alternative online retailers disrupts and diverts Complainant’s business. Finally, Respondent had actual knowledge of Complainant’s rights in the mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the AMAZON.COM mark.
Respondent registered the at-issue domain name after Complainant acquired rights in AMAZON.COM.
Respondent uses the <amazøn.com> domain name to alternatively address pay-per-click pages, website hijacking warnings, and fake support pages that phish for login credentials, generate fake malware warnings, and infect computers with actual malware.
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’s ownership of a USPTO registration for AMAZON.COM demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register …, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”).
Respondent’s domain name contains Complainant’s AMAZON.COM trademark, with its “o” substituted by the Unicode character “ø.” The slight difference between the at-issue domain name and Complainant’s trademark is insufficient to distinguish one from the other for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <amazøn.com> domain name is confusingly similar to Complainant’s AMAZON.COM trademark. See Microsoft Corp. v. Harrington, FA1305319 (Forum Mar. 16, 2010) (finding the <bıng.com> [xn--bng-jua.com] domain name confusingly similar to the BING mark and noting, “The Panel finds that exchanging one letter for another in the disputed domain name fails to prevent confusing similarity according to Policy ¶ 4(a)(i), especially when the disputed domain name remains visually similar to Complainant’s mark”).
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 is not authorized to use Complainant’s trademark in any capacity and as discussed below there is no evidence supporting a finding pursuant to Policy 4(c) that Respondent has rights or interests in the at-issue domain name, Complainant’s prima facie showing acts conclusively.
WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Carolina Rodrigues / Fundacion Comercio Electronico.” The record before the Panel contains no evidence that might otherwise tend to prove that Respondent is commonly known by the at-issue domain name. The Panel therefore concludes that for the purposes of Policy ¶ 4(c)(ii) Respondent is not commonly known by the at-issue domain name. 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); see also, 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).
Additionally, Respondent uses the <amazøn.com> domain name to address a webpage that promotes other online retailers such as Walmart and Best Buy. Respondent’s website gives the false impression that such website is affiliated with, and authorized by, Complainant when it is not. 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 pursuant to Policy ¶4(c)(iii). See 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).”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of legitimate interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, Policy ¶ 4(b) bad faith circumstances are present and there is additional non-Policy ¶ 4(b) evidence from which the Panel may independently conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First, Complainant shows that Respondent has been a respondent in more than a dozen adverse UDRP decisions over the last several years. Respondent’s pattern of past cybersquatting suggests bad faith in the instant case pursuant to Policy ¶ 4(b)(ii). See Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (NAF Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants); see also, Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“Complainant has provided evidence that Respondent has a history of UDRP and USDRP decisions decided against it. This establishes bad faith within the meaning of Policy ¶ 4(b)(ii).”).
Next and as mentioned above regarding rights and legitimate interests, Respondent uses the at-issue domain name to address a website displaying competing click-through links. Such use demonstrates bad faith under Policy ¶¶ 4(b)(iii) and (iv). See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”); see also Staples, Inc. and Staples the Office Superstores, LLC v. HANNA EL HIN / DTAPLES.COM, FA1404001557007 (Forum June 6, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <dtaples.com> domain name in bad faith under Policy ¶ 4(b)(iv) because the Respondent is using the disputed domain name to host third-party links to Complainant’s competitors from which Respondent is presumed to obtain some commercial benefit.”).
Further, browsing to the Respondent’s domain name at times causes the issuance of a contrived malware alert which urges the recipient to enter private login credentials or call a specified phone number. Respondent’s phishing scheme, besides disclosing the third private data, ultimately results in an endless loop which disables the computer user’s browser and requires restarting. Respondent’s use of the at-issue domain name to phish for private information and infect computers with malware demonstrates Respondent’s bad faith under Policy ¶ 4(a)(iii). See United States Postal Service v. kyle javier, FA 1787265 (Forum June 12, 2018) (“Use of a domain name to phish for Internet users’ personal information is evidence of bad faith.”); see also Twitter, Inc. v. Kiribati Media / Kiribati 200 Media Limited, FA1502001603444 (Forum Mar. 19, 2015) (“Using the disputed domain name to download malicious software into unsuspecting viewers’ computers evidences Respondent’s bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”).
Additionally and not specifically argued by Complainant, Respondent is engaged in typosquatting. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark and then uses the resulting string in a domain name hoping that internet users will either: 1) inadvertently type the malformed string when searching for products or services related to the domain name’s target trademark; and/or 2) in viewing the domain name will confuse the domain name with its target trademark. Here, in creating the at-issue domain name Respondent misspells Complainant’s AMAZON.COM trademark in the at-issue domain name by swapping the “o” in AMAZON for the Unicharacter “ø.” Without close inspection the domain name appears to be identical to Complainant’s AMAZON.COM trademark. Typosquatting, in itself, indicates bad faith under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).
Finally, Respondent had actual knowledge of Complainant’s rights in the AMAZON.COM mark when it registered <amazøn.com>. Respondent’s actual knowledge is evident from the notoriety of Complainant’s trademark and from Respondent’s overt misspelling of Complainant’s mark within the <amazøn.com> domain name. It is inconceivable that Respondent was unaware of Complainant’s renowned trademark when it registered its <amazøn.com> domain name. Registering and using a confusingly similar domain name with knowledge of Complainant’s rights in such domain name shows bad faith registration and use 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); see also, 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); see also, Twitter, Inc. v. accueil des solutions inc, D2013-0062 (WIPO April 1, 2013) (“where a domain name is so obviously connected with a well-known product or service, its very use by someone with no connection with the product may suggest opportunistic bad faith”);
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amazøn.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: December 27, 2018
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