Amazon Technologies, Inc. v. Jay Mulama / Jay Media
Claim Number: FA1605001675807
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Jay Mulama / Jay Media (“Respondent”), Kenya.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amazonreviewsmall.com>, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 19, 2016; the Forum received payment on May 19, 2016.
On May 20, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <amazonreviewsmall.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 May 20, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 9, 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@amazonreviewsmall.com. Also on May 20, 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 June 15, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is one of the world’s largest online retailers, offering products and services to more than 100 countries around the globe. Its web site <amazon.com> is the 4th most-viewed website in the United States, the 7th most-viewed website globally, and the No. 1 most-viewed shopping website. Complainant registered its AMAZON mark in United States in 2004, and the mark is also registered elsewhere around the world. Complainant’s mark is famous.
According to Complainant, the disputed domain name is confusingly similar to its mark as it adds the descriptive terms “reviews” and “mall,” and the generic top-level domain (“gTLD”) “.com.” Complainant cites UDRP precedents to support its position.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known as the disputed domain name, nor is Respondent a licensee of Complainant. Further, the domain name has been used by Respondent to run a competing business which offers vendors on <amazon.com> fraudulent positive reviews of their products in an attempt to promote their sales in violation of the Amazon user agreement. Specifically, Respondent offers a service in which businesses can pay for consumer reviews of their own products sold on Amazon’s website. Under Respondent’s “review” service, the seller decides what is said to potential buyers about its own products, even though the product “review” is intended to be posted along with other reviews authored by legitimate consumers who have purchased the seller’s product. Consumers considering purchases of the product are likely to be deceived into thinking that the “review” has been posted by another consumer who was not compensated for the comments in the review. This deceptive behavior, in which sellers are permitted to control their own reviews, violates U.S. federal and state laws intended to protect consumers. Complainant cites UDRP precedents to support its position.
In addition, says Complainant, the use of Complainant’s trademarks on the resolving website indicates an attempt to pass itself off as Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent has engaged in bad faith registration and use. Respondent has disrupted Complainant’s business by operating a competing business on the resolving webpage. Respondent is attempting to commercially profit from a likelihood of confusion which is furthered by Respondent’s passing off behavior. Lastly, because Complainant’s AMAZON trademark has become so famous, Respondent had actual knowledge of Complainant’s trademark rights at the time of the disputed domain name’s registration. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark AMAZON and uses it in connection with its online retailing business. The mark is famous.
Complainant’s registration of its mark dates back to 2004.
The disputed domain name was registered in 2015.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain name to resolve to a web site that offers fraudulent reviews for products listed on Complainant’s webpage.
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 disputed domain name is confusingly similar to Complainant’s AMAZON mark as it adds the descriptive terms “reviews” and “mall,” and the gTLD “.com.” The panel in Amazon Technologies, Inc. v. JEREMY S. MOORE, FA 1666264 (Forum Apr. 25, 2016) found the <buyamazonreviews.com> to be confusingly similar as “the addition of ‘buy’ and ‘reviews’ to the disputed domain name is inconsequential.” See also American Express Co. v. MustNeed.com, FA0404000257901 (Nat. Arb. Forum June 7, 2004) (“The mere addition of a generic or descriptive word to a registered mark does not negate the confusing similarity of Respondent’s domain name pursuant to Policy ¶ 4(a)(i)”); see also Hewlett-Packard Dev. Co. L.P. v. Surya Tech., FA0708001059665 (Nat. Arb. Forum Oct. 2, 2007) (“addition of a term that relates to the business in which Complainant engages and the addition of the gTLD are not sufficient to differentiate a domain name from a known mark”); see also Starwood Capital Grp. Global LLC v. Resort Realty, FA 1043061 (Forum Sept. 6, 2007), holding, “[T]he addition of the generic top-level domain ‘.com’ does nothing to eliminate the confusing similarity, as a top-level domain is a requirement for all domain names.”
Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Respondent is not a licensee of Complainant, nor has Complainant authorized it to use its mark. Respondent is not commonly known by the disputed domain name: the WHOIS identifies Respondent as Jay Mulama / Jay Medi. See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name); see also Tercent Inc. v. Yi, FA0301000139720 (Nat. Arb. Forum Feb. 10, 2003) (finding that the WHOIS information, and its failure to imply that Respondent is commonly known by the disputed domain name, is a factor in determining that Policy ¶4(c)(ii) does not apply).
The disputed domain name has been used by Respondent to run a competing business which offers vendors on <amazon.com> fraudulent positive reviews of their products in an attempt to promote their sales in violation of the Amazon user agreement. See Amazon Technologies, Inc. v. Moore, FA1603001666264 (Nat. Arb. 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)).
In addition, the use of Complainant’s trademarks on the resolving website indicates an attempt to pass itself off as Complainant. Panels have found a lack of rights and legitimate interests where a respondent failed to distinguish itself from the complainant. See Smith v. Network Operations Ctr., FA 371622 (Forum Jan. 13, 2005) (finding that the respondent’s use of the <ambersmith.com> domain name “that contain[ed] material directly related to Complainant, including her name and photograph prominently displayed at the top of the page” did not fall within the parameters of Policy ¶¶ 4(c)(i) or (iii) because it presented a false association with the complainant); see Microsoft Corp. v. lijiuliang, FA0912001300266 (Nat. Arb. Forum Feb. 11, 2010) (“Respondent’s attempt to pass itself off as Complainant by imitating Complainant’s official website … 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)”).
Further, legitimate rights or bona fide use do not exist when there is deliberate infringement of another’s rights, or when the domain name is used in bad faith to divert users through confusion (see the discussion below). See The PNC Financial Services Group, Inc. and PNC Bank, N.A. v. Azra Khan, WIPO Case No. D2002-0701; see also AltaVista Company v. Saeid Yomtobian, WIPO Case No. D2000 0937.
Accordingly, the Panel finds that Respondent does not have any rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s famous mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Respondent is using the disputed domain name to resolve to a web site that offers fraudulent reviews for products listed on Complainant’s webpage. This disrupts Complainant’s business under the AMAZON mark, because that business is partly based on customers’ ability to engage in truthful feedback. Respondent is commercially profiting from a likelihood of confusion which is furthered by Respondent’s passing off behavior. Panels have agreed that such behavior constitutes bad faith registration and use per Policy ¶¶ 4(b)(iii) and (iv). See Amazon Technologies, Inc. v. Moore, FA1603001666264 (Nat. Arb. Forum Apr. 25, 2016) (finding bad faith where “the resolving webpage [at <buyamazonreviews.com>] offer[ed] fraudulent reviews for products listed on Complainant’s webpage and … Complainant’s business under the AMAZON trademark is in part predicated upon customers being able to give and receive product feedback”); see also V Secret Catalogue, Inc. v. Bryant Little, FA 301728 (Nat. Arb. Forum Sept. 2, 2004) (“Respondent’s practice of diversion, motivated by commercial gain, constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv)”); see also Yahoo! Inc. v. sumit kalra / mam solution / mam solutions, FA1512001650447 (Forum Dec. 31, 2015) (“Respondent's registration of domain names obviously intended to create confusion with Complainant, together with its use of those domain names in connection with a fraudulent scheme involving passing itself off as Complainant and attempting to defraud Complainant's customers, is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv)”); see also Microsoft Corp. and Skype v. ATF The Veil Super Fund, FA1211001470016 (Nat. Arb. Forum December 20, 2012) (“Respondent attempts to facilitate competition with Complainant and disrupt Complainant’s business, which indicates bad faith use and registration under Policy ¶ 4(b)(iii)”); see also MetroPCS, Inc. v. Robertson, FA0609000809749 (Nat. Arb. Forum Nov. 13, 2006) (finding bad faith where the respondent’s web site gave the false impression of being affiliated with the complainant); see also World Wrestling Fed’n Entm’t, Inc. v. Ringside Collectibles, D2000-1306 (WIPO Jan. 24, 2001) (“the use of the logo on the web site to which wwfauction.com is redirected supports the conclusion that wwfauction.com is likely to confuse, and thus is being used in bad faith”); see also MidFirst Bank v. Smith, FA0907001274302 (Nat. Arb. Forum August 31, 2009) (use of the disputed domain name to pass oneself off as the Complainant constitutes bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iv)).
The Panel therefore finds that Respondent’s actions constitute disruption and attraction for commercial gain under Policy ¶¶ 4(b)(iii) and (iv), and that Respondent registered and is using the disputed domain name in bad faith in the sense of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amazonreviewsmall.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 16, 2016
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