DECISION

 

Amazon.com, Inc. v. The data in Bulkregister.com's WHOIS database is p aka Domain Host aka Andrey Michailov aka Momm Amed Ia

Claim Number: FA0407000293737

 

PARTIES

Complainant is Amazon.com, Inc. (“Complainant”). Respondent is The data in Bulkregister.com's WHOIS database is p aka Domain Host aka Andrey Michailov aka Momm Amed Ia (collectively, “Respondent”).

 

REGISTRAR AND DISPUTED DOMAIN NAMES 

The domain names at issue are <aamazon.com>, <amaazon.com> and <amazzon.com>, registered with Enom, Inc.

 

PANEL

The undersigned certify that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelists in this proceeding.

 

Judge Mark McCormick(Ret.) and Edward C. Chiasson Q.C. as Panelist, and Judge Karl V. Fink (Ret.) as Chair.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on July 7, 2004; the Forum received a hard copy of the Complaint on July 12, 2004.

 

On July 9, 2004, Enom, Inc. confirmed by e-mail to the Forum that the domain names <aamazon.com>, <amaazon.com> and <amazzon.com> are registered with Enom, Inc. and that the Respondent is the current registrant of the name.  Enom, Inc. has verified that Respondent is bound by the Enom, 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 July 19, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of August 9, 2004 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@aamazon.com, postmaster@amaazon.com and postmaster@amazzon.com by e-mail.

 

Having received no Response from Respondent, using the same contact details and methods as were used for Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

 

On August 19, 2004, pursuant to Complainant’s request to have the dispute decided by a three-member Panel, the Forum appointed Judge Mark McCormick(Ret.) and Edward C. Chiasson Q.C. as Panelist, and Judge Karl V. Fink (Ret.) as Chair.

 

Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum 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 from Respondent.” Therefore, the Panel issues 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 the Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

 

PARTIES’ CONTENTIONS

A. Complainant

Respondent registered several typos of Complainant’s internationally famous trademark AMAZON.COM®, without authorization, in a bad faith attempt to benefit from Complainant’s name and reputation.  Under ICANN Rule 3(c) it is appropriate for this Complaint to relate to each of the disputed domain names despite the fact that different names are used in the contact information for each domain because the evidence shows that the true domain name holder is the recidivist cybersquatter, Alex Vorot. 

The contacts listed for the disputed domain names are all aliases of Alex Vorot.  Although Complainant has not found a panel decision directly holding that Momm Amed Ia (administrative contact for amazzon.com) is an alias of Alex Vorot, the evidence indicates this to be the case. 

 

All the disputed domain names redirect to www.ownbox.com, which has been found to be one of Alex Vorot’s websites.  The disputed domains were all created within half an hour of each other at the same registrar.  All of the disputed domain names also are similar in that they are obvious typos of Complainant’s name and trademark AMAZON.COM® employing a double-letter typo pattern.  The evidence, soundly supports the conclusion that Alex Vorot is the real domain holder of the disputed domain names.

 

The fame, consumer recognition, and Complainant’s ownership of its name and its AMAZON marks, including AMAZON.COM® and AMAZON, are beyond dispute.  It also is clear that this is a simple, run of the mill, “typo-squatter” case.  There can be no genuine dispute that the domain names at issue, aamazon.com, amaazon.com, and amazzon.com, are confusingly similar typos of Complainant’s tradename and marks.

 

Amazon.com’s innovative and broadly successful use of the Internet as a medium of commerce has made it one of the world’s best known Internet retailers. The magnitude of Amazon.com’s sales demonstrates the tremendous market recognition of the Amazon.com brand.  Tens of millions of customers from over 220 countries have purchased goods and services through the Amazon.com® website. 

 

Complainant’s name and marks were famous worldwide by the time Respondent first registered the disputed domain names in 2000.  Complainant holds several registrations for the AMAZON.COM mark with the United States Patent and Trademark Office (e.g. Reg. No. 2,078,496, issued July 15, 1997; Reg. No. 2,167,345, issued June 23, 1998; Reg. No. 2,696,140, issued Mar. 11, 2003; Reg. No. 2,684,128, issued Feb. 4, 2003; Reg. No. 2,559,936, issued Apr. 9, 2002 and Reg. No. 2,633,281, issued Oct. 8, 2002). In addition to the “AMAZON” registrations in the United States, Complainant has registered its AMAZON.COM® and other AMAZON-family marks in over forty other countries and political communities around the globe.

 

The disputed domain names simply double either the first or second “a” or the “z” in Complainant’s AMAZON marks.  These typos form domain names that sound phonetically identical to Complainant’s mark and also look virtually identical. 

 

Each of the disputed domains redirects to www.ownbox.com.  The corresponding ownbox.com domain name is registered to Amjad Kauser, which is another alias used by Respondent.

 

Respondent has not been commonly known by the disputed domain names.  Respondent’s WHOIS records indicate that Respondent has not been commonly known by any of the disputed domain names, and indeed attempt to conceal Respondent’s true identity.  Further, given the fame of Complainant’s marks, Respondent should not be considered commonly known by the disputed domain names.  Most consumers would associate domain names that are confusingly similar to Complainant’s tradename and marks with Complainant. 

 

Complainant has not licensed Respondent’s use of the disputed domain names. 

 

Given the late creation date of the disputed domains and Respondent’s history of cybersquatting using false identities, there can be no question that Respondent’s attempt to ride the coattails of Complainant’s famous name and marks is taken in bad faith, in violation of both the Policy and U.S. federal law.

 

The disputed domains are simply typo-ploys.  Such ploys are recognized as demonstrating bad faith.  Respondent’s registration of the confusingly similar typos of Complainant’s marks further shows bad faith because Respondent knew or should have known of Complainant’s world famous name and marks when he registered the domain names in dispute. 

 

Respondent provided false contact information in this case because each of the disputed domain names are clearly related, yet none lists the same owner, nor the true owner. 

 

Given Respondent’s knowledge of Complainant’s name and marks, the only plausible reason for his registration of the disputed domain names was to intentionally attempt to attract, for commercial gain, Internet users to Respondent’s website(s) by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website and products and/or services. 

 

B. Respondent

Respondent did not submit a response.

 

FINDINGS

For the reasons set forth below, the Panel finds Complainant has proved that the domain names should be transferred.

 

DISCUSSION

Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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 the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(2)    the 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.

 

Identical and/or Confusingly Similar

 

The Panel finds that Complainant has established rights in the AMAZON.COM mark due to its registrations with the United States Patent and Trademark Office. Complainant also has registrations for the AMAZON.COM mark in numerous foreign countries including several European countries, Australia, Canada, China, Indonesia, Israel, Japan, Kenya, Mexico, Peru, Saudi Arabia, Singapore, South Korea, Sweden, Switzerland, Taiwan and Turkey. See Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive and have acquired secondary meaning.”); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) (finding that Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.  Respondent has the burden of refuting this assumption).

 

The Panel finds that Respondent’s  <aamazon.com>, <amaazon.com> and <amazzon.com> domain names are confusingly similar to Complainant’s AMAZON.COM mark because the domain names fully incorporate Complainant’s mark and merely add an extra letter. See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); see also Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a Respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to Complainant’s marks); see also Am. Online, Inc. v. Tencent Commun. Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding that <oicq.net> and <oicq.com> are confusingly similar to Complainant’s mark, ICQ).    

 

            Complainant has proven this element.

 

Rights or Legitimate Interests

 

Complainant asserts that Respondent is not commonly known by the <aamazon.com>, <amaazon.com> and <amazzon.com> domain names and therefore lacks rights and legitimate interests in the domain names pursuant to Policy ¶ 4(c)(ii). See Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademarked name); see also Victoria’s Secret v. Asdak, FA 96542 (Nat. Arb. Forum Feb. 28, 2001) (finding sufficient proof that Respondent was not commonly known by a domain name confusingly similar to Complainant’s VICTORIA’S SECRET mark because of Complainant’s well-established use of the mark).

 

The Panel finds that Respondent has no rights or legitimate interests in the <aamazon.com>, <amaazon.com> and <amazzon.com> domain names because the disputed domain names redirect Internet users to the same commercial website, <ownbox.com>, a website operated by Respondent that generates pop-up advertisements. If the Panel finds that Respondent is redirecting internet users to its own website, the Panel concludes that Respondent’s practice of diversion is not 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). See Oly Holigan, L.P. v. Private, FA 95940 (Nat. Arb. Forum Dec. 4, 2000) (finding no rights or legitimate interest in a misspelled domain name as Respondent was merely using it to redirect Internet users to, inter alia, an online casino); see also Toronto-Dominion Bank v. Karpachev, 188 F.Supp.2d 110, 114 (D. Mass. 2002) (finding that, because Respondent's sole purpose in selecting the domain names was to cause confusion with Complainant's website and marks, its use of the names was not in connection with the offering of goods or services or any other fair use); see also MSNBC Cable, LLC v. Tysys.com, D2000-1204 (WIPO Dec. 8, 2000) (finding no rights or legitimate interests in the famous MSNBC mark where Respondent attempted to profit using Complainant’s mark by redirecting Internet traffic to its own website).

 

Complainant has proven this element.

 

Registration and Use in Bad Faith

 

The Panel finds that Respondent has engaged in the practice of typosquatting by registering double letter typos of Complainant’s famous AMAZON.COM mark. The act of typosquatting itself evidences bad faith registration and use pursuant to Policy ¶ 4(a)(iii). Therefore, thePanel finds that Respondent registered and used the <aamazon.com>, <amaazon.com> and <amazzon.com> domain names in bad faith. See Nat’l Ass’n of Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting is the intentional misspelling of words with intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of bad faith”); see also Medline, Inc. v. Domain Active Pty. Ltd., FA 139718 (Nat. Arb. Forum Feb. 6, 2003) (Typosquating raises an inference of bad faith which the Respondent has not displaced.)

 

Furthermore, the Panel finds that Respondent registered and used the  <aamazon.com>, <amaazon.com> and <amazzon.com> domain names in bad faith because Respondent used the domain names intentionally to attempt to attract Internet users to its site for commercial gain by creating a likelihood of confusion between Complainant’s AMAZON.COM mark and Respondent’s domain names. See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that Respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because Respondent was using the confusingly similar domain name to attract Internet users to its commercial website); see also State Fair of Texas v. Granbury.com, FA 95288 (Nat. Arb. Forum Sept. 12, 2000) (finding bad faith where Respondent registered the domain name <bigtex.net> to infringe on Complainant’s goodwill and attract Internet users to Respondent’s website); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that Respondent’s use of the <saflock.com> domain name to offer goods competing with Complainant’s illustrates Respondent’s bad faith registration and use of the domain name, evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv)).

 

Complainant has proven this element.

 

DECISION

Complainant having established all three elements required under the ICANN Policy, the Panel concludes that the  relief requested shall be GRANTED.

 

Accordingly, it is Ordered that the <aamazon.com>, <amaazon.com> and <amazzon.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

 

 

 

Judge Karl V. Fink (Ret.), Panel Chair

Dated: September 2, 2004

 

Edward C. Chiasson, Q.C. & Judge Mark McCormick (Ret.), Panelists

 

 

 

 

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