Amazon.com, Inc. v. Integration
Unlimited, Inc.
Claim
Number: FA0308000183725
Complainant is Amazon.com, Inc., Seattle, WA
(“Complainant”) represented by James
Geringer, of Klarquist Sparkman, LLP. Respondent is Integration Unlimited, Inc., Kennesaw, GA (“Respondent”).
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <amazonallergy.com>, registered with Network
Solutions, Inc.
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.
James
A. Carmody, Esq., as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum (the "Forum")
electronically on August 8, 2003; the Forum received a hard copy of the
Complaint on August 11, 2003.
On
August 13, 2003, Network Solutions, Inc. confirmed by e-mail to the Forum that
the domain name <amazonallergy.com> is registered with Network
Solutions, Inc. and that Respondent is the current registrant of the name. Network
Solutions, Inc. has verified that Respondent is bound by the Network Solutions,
Inc. registration agreement and has thereby agreed to resolve domain-name
disputes brought by third parties in accordance with ICANN's Uniform Domain
Name Dispute Resolution Policy (the "Policy").
On
August 19, 2003, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
September 8, 2003 by which Respondent could file a Response to the Complaint,
was transmitted to Respondent via e-mail, post and fax, to all entities and
persons listed on Respondent's registration as technical, administrative and
billing contacts, and to postmaster@amazonallergy.com by e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the Forum transmitted
to the parties a Notification of Respondent Default.
On
September 18, 2003, pursuant to Complainant's request to have the dispute
decided by a single-member Panel, the Forum appointed James A. Carmody, Esq.,
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."
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 makes the following assertions:
1. Respondent’s <amazonallergy.com>
domain name is confusingly similar to Complainant’s AMAZON.COM mark.
2. Respondent does not have any rights or
legitimate interests in the <amazonallergy.com> domain name.
3. Respondent registered and used the <amazonallergy.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant,
Amazon.com, Inc., owns a number of trademark registrations for the AMAZON.COM
mark in the United States and internationally. For example, Complainant holds a
trademark registration with the U.S. Patent and Trademark Office (“USPTO”) for
the AMAZON.COM mark (Reg. No. 2,078,496 registered on July 15, 1997) related to
computerized on-line ordering services, featuring the wholesale and retail
distribution of books. From its early focus on books and other media materials,
Complainant has expanded its operations, and currently sells healthcare
products, including allergy related products, in partnership with
Drugstore.com.
Respondent, Integration
Unlimited, Inc., registered the <amazonallergy.com> domain name on
August 9, 2002, without license or authorization to use Complainant’s
AMAZON.COM mark for any purpose. Respondent uses the disputed domain name to
host a website for “Achoo Allergy,” which operate as an online retailer for
allergy related medications.
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."
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(e), 14(a) and 15(a) of the Rules and
draw such inferences it considers appropriate pursuant to paragraph 14(b) of
the Rules.
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.
Complainant has
established rights in the AMAZON.COM mark through registration of the mark on
the Principal Register of the USPTO, as well as through widespread and
continuous use of the mark in commerce.
However,
Complainant has not established that the <amazonallergy.com> domain name is confusingly similar to
Complainant’s AMAZON.COM mark.While the disputed domain name does incorporate
the AMAZON mark, it is not clear what confusingly similar relationship the word
“allergy” bears to that mark. Complainant alleges that it sells healthcare
products, including allergy related products. However, Complainant also notes
that these sales are done in partnership with Drugstore.com and Internet users
seeking allergy medications online are redirected to the <drugstore.com>
domain name. Thus, while the term “allergy” appears to bear a strong
relationship with the activities performed at the <drugstore.com> domain
name, it bears little to no actual relationship with the activities performed
under Complainant’s AMAZON.COM mark. Under these circumstances, it does not
appear that the words “amazon” and “allergy” together in a domain name will
create a domain name that is confusingly similar to Complainant’s AMAZON.COM
mark. See Prudential Ins. Co. of Am. v. QuickNet Communications, FA 146242
(Nat. Arb. Forum March 27, 2003) (holding that the <prudentialmotors.com> domain name, which
incorporated the PRUDENTIAL mark with the addition of the word “motors,” had no
apparent connection to Complainant or the insurance and financial industry and
was thus not confusingly similar to Complainant’s mark);
see also Donald J. Trump and Trump Hotels & Casino
Resorts, Inc. v olegevtushenko a/k/a Oleg Evtushenko, FA 101509 (Nat. Arb. Forum Dec. 11, 2001) (finding that
if Complainant is really making an initial interest confusion argument, it
would have to be suggesting that the public would be expecting that its
distinguished moniker and service mark TRUMP would be readily associated with
<porntumps.com>).
Accordingly, the
Panel finds that the <amazonallergy.com> domain name is not confusingly similar to Complainant’s AMAZON.COM mark
under Policy ¶ 4(a)(i).
As Complainant
failed to carry its burden with respect to Policy ¶ 4(a)(i), the Panel need not
consider the remainder of the Complaint. See Creative Curb v. Edgetec Int’l
Pty. Ltd., FA 116765 (Nat. Arb. Forum Sept. 20, 2002) (finding that because
Complainant must prove all three elements under the Policy, Complainant’s
failure to prove one of the elements makes further inquiry into the remaining
element unnecessary).
Having failed to
establish all three elements required under the ICANN Policy, the Panel
concludes that relief shall be DENIED.
James A. Carmody, Esq., Panelist
Dated:
September 25, 2003
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