Amazon Technologies, Inc. v. Grol Offens
Claim Number: FA1702001715895
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by Fabricio Vayra of Perkins Coie LLP, Washington D.C., USA. Respondent is Grol Offens (“Respondent”), Netherlands.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amazonpromocode.online>, 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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 3, 2017; the Forum received payment on February 3, 2017.
On February 6, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <amazonpromocode.online> 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 February 8, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 28, 2017 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@amazonpromocode.online. Also on February 8, 2017, 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 March 7, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <amazonpromocode.online> domain name is confusingly similar to Complainant’s AMAZON mark.
2. Respondent does not have any rights or legitimate interests in the <amazonpromocode.online> domain name.
3. Respondent registered and uses the <amazonpromocode.online> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant holds a registration for its well-known AMAZON.COM mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,078,496, registered July 15, 1997).
Respondent registered the <amazonpromocode.online> domain name on Oct. 17, 2016, and uses it to to trick consumers into applying for a free “Amazon Promo Code” by sharing their website on social media and completing a survey, and to obtain personal information.
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 Panel finds that Complainant has established rights in the AMAZON.COM mark for the purposes of Policy ¶ 4(a)(i) by registering the mark with the USPTO. See T-Mobile USA, Inc. dba MetroPCS v. Ryan G Foo / PPA Media Services, FA 1627542 (Forum Aug. 9, 2015) (finding that Complainant has rights in the METROPCS mark through its registration with the United States Patent and Trademark Office.).
Respondent’s <amazonpromocode.online> domain name incorporates the dominant portion of the AMAZON mark and adds the generic terms “promo” and “code”, and the TLD “.online”. These changes do not distinguish the disputed domain name from Complainant’s mark. See EMVCO, LLC c/o Visa Holdings v. Corey Grottola / Prophet Companies, FA 1649199 (Forum Dec. 22, 2015) (Holding that the addition of descriptive terms to a complainant’s mark does not serve to adequately distinguish a disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i).); see also Europcar Int’l SA v. New Media Research in Romania SRL, FA 123906 (Forum Nov. 4, 2002) (“Respondent’s <europcar.ro> domain name is identical to Complainant’s EUROPCAR mark. Respondent’s domain name incorporates Complainant’s mark in its entirety, and only deviates with the addition of the Romanian country-code of “.ro.” Because top-level domains are required of domain name registrants, their addition has been determined to be inconsequential when conducting an identical analysis under Policy ¶ 4(a)(i).”). Therefore, the Panel finds that Respondent’s <amazonpromocode.online> domain name is confusingly similar to Complainant’s AMAZON.COM mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant contends that Respondent has no rights or legitimate interests in <amazonpromocode.online>. Complainant argues that there is no evidence to demonstrate that Respondent is commonly known by the disputed domain name, and Complainant has not licensed or otherwise permitted Respondent to use Complainant’s mark. The WHOIS identifies “Grol Offens” as the registrant of the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by <amazonpromocode.online> under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
Complainant contends that the disputed domain name resolves to a webpage that uses Complainant’s marks to trick customers into believing they can receive a free promo code for Complainant’s services by completing surveys to phish for personal information. Using a confusingly similar domain name to participate in a phishing scheme is evidence of a lack of a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Nordstrom, Inc. v. Above.com Domain Privacy, FA 1654490 (Forum February 1, 2016) (finding respondent failed under Policy ¶¶ 4(c)(i) and (iii) as it phished for internet users’ personal information via a fake survey). Accordingly, the Panel finds that Respondent is not using the <amazonpromocode.online> domain name for a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor is it making a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant claims that Respondent registered and uses the <amazonpromocode.online> domain name in bad faith by misleading Internet users and ultimately obtaining their personal information. Using the disputed domain name for a fraudulent phishing scheme is evidence of bad faith. See Citigroup Inc. v. Domain MANAGER / Domain Brokers, FA1505001621817 (Forum July 13, 2015) (finding that the respondent’s use of a survey, in which Internet users were encouraged to enter personal information to complete, indicated bad faith registration and use pursuant to Policy ¶ 4(a)(iii)). Accordingly, the Panel finds that Respondent registered and uses the <amazonpromocode.online> domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant argues that Respondent must have had actual knowledge of Complainant’s mark based on the manner in which Respondent uses the mark on the webpage resolving form the disputed domain name. The Panel agrees, and notes the fame of Complainant’s AMAZON.COM mark. The Panel finds that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name, which constitutes bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amazonpromocode.online> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 8, 2017
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