Amazon Technologies, Inc. v. Tarun Gulati
Claim Number: FA1606001679069
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 <thekindlesupport.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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 10, 2016; the Forum received payment on June 10, 2016.
On June 13, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <thekindlesupport.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 June 13, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 5, 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@thekindlesupport.com. Also on June 13, 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 July 11, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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, Amazon Technologies, Inc., produces an electronic reading device called the Amazon “Kindle.” Complainant has sold millions of these devices in 175 countries. Complainant’s rights in the KINDLE mark stem from registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,694, 267, registered Oct. 6, 2009). Respondent’s domain <thekindlesupport.com> is confusingly similar to the KINDLE mark as the domain includes the entire mark and only adds the generic top-level domain “.com,” and the generic terms “the” and “support.”
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not affiliated with Complainant and does not have a business relationship with Complainant, and the WHOIS information identifies Respondent as “Tarun Gulati.” Respondent’s domain is not being used in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent uses the domain to pass itself off as a customer service website operated by Complainant, and to promote its own alternative, and competing, fee-based technical support services.
Respondent has registered and is using the domain name in bad faith. Respondent is a serial cybersquatter with a history of adverse UDRP proceedings, imputing bad faith per Policy ¶ 4(b)(ii). Respondent’s offer of competing technical support services disrupts and competes with Complainant’s business. Respondent, through its use of Complainant’s marks and logos to operate an illegitimate technical support website, is attempting to pass itself off as Complainant for commercial gain. Finally, Respondent’s use of Complainant’s logos on its resolving website indicates that the domain was registered with actual knowledge of Complainant’s KINDLE mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Amazon Technologies, Inc., produces an electronic reading device called the Amazon “Kindle.” Complainant has sold millions of these devices in 175 countries. Complainant’s has rights in the KINDLE mark through registration USPTO (e.g., Reg. No. 3,694, 267, registered Oct. 6, 2009). Respondent’s domain <thekindlesupport.com> is confusingly similar to the KINDLE mark.
Respondent, Tarun Gulati, registered the <thekindlesupport.com> domain name on September 26, 2014.
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not affiliated with Complainant and does not have a business relationship with Complainant. The WHOIS information identifies Respondent as “Tarun Gulati.” Respondent’s domain is not being used in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent uses the domain to pass itself off as a customer service website of Complainant, and to promote its own competing, fee-based technical support services.
Respondent has registered and is using the domain name in bad faith. Respondent has engaged in a pattern of registering domains in bad faith. Respondent’s offer of competing technical support services disrupts and competes with Complainant’s business. Respondent, through its use of Complainant’s marks and logos to operate an illegitimate technical support website, is attempting to pass itself off as Complainant for commercial gain. Finally, Respondent’s use of Complainant’s logos on its resolving website shows that the domain was registered with actual knowledge of Complainant’s KINDLE mark.
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.”).
Complainant has rights in the KINDLE mark under Policy ¶ 4(a)(i) through registration with the USPTO. Panels have consistently found that trademark registrations with the USPTO suffice to demonstrate a complainant’s rights in its mark for the purposes of Policy ¶ 4(a)(i), despite a geographic disparity between the parties. See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”).
Respondent’s domain <thekindlesupport.com> is confusingly similar to the KINDLE mark under Policy ¶ 4(a)(i). The domain includes the entire KINDLE mark and differs through the addition of the gTLD “.com” and the generic terms “the” and “support.”
Respondent is not commonly known by the <thekindlesupport.com> domain name Policy ¶ 4(c)(ii). Respondent is not affiliated with Complainant. Complainant has not authorized Respondent to use the KINDLE mark. The WHOIS information for the domain identifies Respondent as “Tarun Gulati.” See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
Respondent’s use of the <thekindlesupport.com> domain is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or ¶ 4(c)(iii). Respondent’s domain resolves to a website that prominently features the KINDLE logos and mark, offers competing technical support services, and displays a toll free number which users may contact to receive the support. When faced with similar behavior, panels have concluded Respondent is attempting to pass itself off as Complainant and have declined to find a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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).”). Panels have also held that a respondent’s use of a domain to promote products and/or services that are in direct competition with a complainant’s business does not constitute a bona fide offering of goods or services, or a legitimate noncommercial or fair use. See Alcon, Inc. v. ARanked, FA 1306493 (Forum Mar. 18, 2010) (“The Panel finds that capitalizing on the well-known marks of Complainant by attracting internet users to its disputed domain names where Respondent sells competing products of Complainant is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Respondent’s bad faith under Policy ¶ 4(b)(ii) is evident from Respondent’s pattern of registering domains in bad faith. Respondent has been a party to an adverse UDRP decision in which the panel found bad faith: Amazon Technologies, Inc. v. Gulati, FA1604001671917 (Forum May 21, 2016). Panels have found bad faith where a respondent has been a party to past UDRP decisions finding bad faith. See Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA1209001464477 (Forum Nov. 30, 2012) (finding where the record reflected that the respondent had been a respondent in other UDRP proceedings in which it was ordered to transfer disputed domain names to various complainants established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)).
Respondent’s bad faith under Policy ¶ 4(b)(iii) is shown through its use of the domain to offer technical support services that compete directly with Complainant’s business. Respondent’s actions create the impression that Complainant charges for technical support. Panels have held a respondent to have registered and used a domain in bad faith where the domain competes with services offered by a complainant. See DatingDirect.com Ltd. v. Aston, FA 593977 (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).”).
Respondent, through its use of Complainant’s marks and logos to operate an illegitimate technical support website, is attempting to profit through confusing and attracting Internet users. Panels have found bad faith under Policy ¶ 4(b)(iv) where a respondent attempted to use a domain to pass itself off as a complainant. See Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”); see also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”).
Respondent had actual knowledge of Complainant's rights in the KINDLE mark. Respondent's display of the KINDLE mark and associated logos shows that Respondent had actual knowledge of Complainant's mark and rights. Therefore, Respondent registered and uses the domain in bad faith under 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 "actual knowledge of Complainant's mark when registering the disputed domain name").
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <thekindlesupport.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: July 23, 2016
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page