Amazon Technologies, Inc. v. Tarun Gulati
Claim Number: FA1604001671917
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Tarun Gulati (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kindlehelpsupport.com> ('the Domain Name'), registered with GoDaddy.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne of Palmer Biggs Legal as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 25, 2016; the Forum received payment on April 25, 2016.
On April 27, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <kindlehelpsupport.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 April 27, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 17, 2016 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@kindlehelpsupport.com. Also on April 27, 2016, 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 May 19, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs Legal 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
The Complainant's submissions can be summarised as follows:
The Complainant is one of the world's largest online retailers offering products and services to more than 100 countries around the globe. It produces the “Kindle,” an electronic reading device released in 2007. As a result of extensive use, advertising, media coverage and commercial success, the KINDLE mark has become famous. Amazon offers free help and support for its devices.
KINDLE is a registered trade mark in the US and elsewhere.
The Domain Name incorporates the Complainant's KINDLE trade mark, adding only the generic term 'help' and 'support' which relate directly to help and support services provided by the Complainant and the gTLD .com. These changes do not negate confusing similarity. Accordingly, the Domain Name is confusingly similar to a trade mark in which the Complainant has rights.
Respondent has not used the Domain Name in connection with a bona fide offering of goods and services, is not making a non commercial fair use of it, and has never been known as 'Kindle' or any variation thereof. Respondent is not affiliated with the Complainant in any way, is not a reseller of the Complainant's goods and is not licenced to use the Complainant's mark
The landing page for the Domain Name is entitled 'Amazon Kindle Support Call Us' and gives a telephone number and purports to offer paid technical support services for Complainant's Kindle devices. The landing page prominently displays Complainant's logos and is calculated to appear to be an official Amazon support channel. When Respondent's agents were contacted and asked “Is this Amazon.com?” they stated “That's right sir.” Using Complainant's trademarks to expressly misrepresent that Respondent is associated with Complainant or that Respondent and Complainant are the same company is not legitimate or bona fide use. Respondent's use of Complainant's trademarks is calculated and likely to confuse and mislead the public as to the source of the Respondent's web site and fee based services and constitutes passing off. This is not fair, nominative or otherwise legitimate use. Respondent has no rights or legitimate interests in the Domain Name.
Respondent registered the Domain Name in bad faith. The use of the Complainant's logos and references to the Complainant on the site attached to the Domain Name shows the Respondent had actual knowledge of the Complainant and its products and services. By incorporating Complainant's famous trademarks and logos Respondent creates the false impression of a web site that originates with or is sponsored by Complainant. The express misrepresentation 'That's right sir' when asked if the Respondent is amazon.com is further evidence of bad faith. By promoting the sale of Respondent's paid services using Complainant's logos and a domain name that is confusingly similar to the KINDLE trade mark Respondent has attempted to commercially benefit unfairly and opportunistically from the goodwill associated with the Complainant's mark and this conduct of diversion shows bad faith registration and use pursuant to Policy 4(b)(iv). Promoting Respondent's competing services and giving consumers the impression that the Complainant charges for technical support when it does not diverts and disrupts the Complainant's business and is evidence of bad faith registration and use pursuant to Policy 4 (b)(iii).
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is one of the world's largest online retailers offering products and services to more than 100 countries around the globe. It produces the “Kindle,” an electronic reading device released in 2007. As a result of extensive use, advertising, media coverage and commercial success, the KINDLE mark has become famous. Amazon offers free help and support for its devices.
KINDLE is a registered trade mark in the US and elsewhere.
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. web net-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.”).
Apart from the .com suffix which is not taken into account for the purposes of the Policy, the Domain Name consists of the Complainant’s KINDLE registered trade mark and the generic words “help” and "support." It is well established authority that the addition of generic words to a trade mark does not serve to distinguish the Domain Name from the Complainant’s mark. See Broadcom Corp v. Domain Depot FA 96854 (Nat. Arb. Forum Apr 23 2001) (finding the broadcomonline.com domain name is confusingly similar to the complainant's BROADCOM mark); see also Jerry Damson Inc. v. Tex Intl Prop. Assocs., FA 916991 (Nat.Arb.Forum Apr 10, 2007) ("The mere addition of a generic top-level domain ("gTLD") ".com" does not serve to adequately distinguish the Domain Name from the mark.") The Panellist finds that the Domain Name is confusingly similar to the Complainant’s registered trade mark KINDLE for the reasons given above and as such the Complainant satisfies para 4(a)(i) of the Policy.
The Panellist has had an opportunity to review the Respondent's web site and is of the opinion that it gives the impression that it is an official site authorised by the Complainant. It was not clear to the panellist upon a quick review of the site that it was not a site authorised by the Complainant mainly due to use of the Complainant’s marks and logos. The Respondent also appears to have misrepresented itself to be the Complainant on the telephone. As such the web site must be considered to be misleading and the Respondent passing itself off as connected with or authorised by the Complainant. Passing off is evidence that the Respondent lacks rights or legitimate interests in the Domain Name.See Am. Int'l Group Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the respondent's attempts to pass itself off as the Complainant online was evidence that the Respondent has no rights or legitimate interests in the disputed domain name); see also Dream Horse Classifieds v. Mosely FA 381256 (Nat. Arb. Forum Feb, 8 2005) (finding that the respondent's attempts to pass itself off as the complainant was evidence that the respondent lacked rights and legitimate interests.). As such the panellist finds that the Respondent lacks any rights or legitimate interests in the Domain Name.
Having found that the Respondent's web site and telephone conduct is confusing and misleading customers into believing it is associated with the Complainant the panellist believes that the Respondent is attempting to pass itself off as authorised by the Complainant and has intentionally attempted to attract for commercial gain internet users to its web site by creating a likelihood of confusion by using the Complainant's marks and logo as to the source or endorsement of its web site under Para 4 (b)(iv) of the Policy and also causing disruption to the Complainant under Para 4 (a)(iii) of the Policy. See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28 2005)('Respondent is appropriating Complainant's mark to divert Complainant's customers to Respondent's competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy 4(b)(iii). Also Asbury Auto, Group, Inc v. Tex, Int'l Prop. Assocs., FA 958542 (Nat. Arb. Forum May 29, 2007) (finding that the respondent's use of the domain name to advertise car dealerships that competed with the Complainant's business would likely lead to confusion among Internet users as to the sponsorship or affiliation of those competing dealerships and was therefore evidence of bad faith registration and use pursuant to Policy 4(b)(iv). As such the panellist finds that the Domain Name has been registered and used in 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 <kindlehelpsupport.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: May 21, 2016
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