Amazon Technologies, Inc. v. Joseph Livingstone / Help People Of God
Claim Number: FA1902001831874
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Joseph Livingstone / Help People Of God (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <alexa-support.us>, <alexa-solutions.us>, and <echo-alexa.us>, registered with NameCheap, Inc.
The undersigned certifies that she has acted independently and impartially and to the best of 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 27, 2019; the Forum received payment on February 27, 2019.
On February 28, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <alexa-support.us>, <alexa-solutions.us>, and <echo-alexa.us> domain names are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On February 28, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 20, 2019 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@alexa-support.us, postmaster@alexa-solutions.us, postmaster@echo-alexa.us. Also on February 28, 2019, 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 21, 2109, 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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD 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 names be transferred from Respondent to Complainant.
A. Complainant
1. Respondent’s <alexa-support.us>, <alexa-solutions.us>, and <echo-alexa.us> domain names are confusingly similar to Complainant’s ALEXA mark.
2. Respondent does not have any rights or legitimate interests in the <alexa-support.us>, <alexa-solutions.us>, and <echo-alexa.us> domain names.
3. Respondent registered and uses the <alexa-support.us>, <alexa-solutions.us>, and <echo-alexa.us> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, one of the world’s largest online retailers, uses the ALEXA mark in connection with a cloud-based virtual assistant, and uses the ECHO mark in connection with Complainant’s hardware offerings. Complainant holds a registration for the ALEXA mark (Reg. No. 2,181,470, registered Aug. 11, 1998) and for the ECHO mark (Reg. No. 5,469,992, registered May 15, 2018) with the United States Patent and Trademark Office (“USPTO”).
Respondent registered the disputed domain names on the following dates: <alexa-support.us> (November 28, 2018), <alexa-solutions.us> (January 17, 2019), and <echo-alexa.us> (December 24, 2018). Respondent uses the disputed domain names to pass off as Complainant and promote Respondent’s web design and search engine optimization services.
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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 ALEXA and ECHO marks for the purposes of Policy ¶ 4(a)(i) through registration with the USPTO. See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”).
Complainant argues that Respondent’s <alexa-support.us> and <alexa-solutions.us> domain names are confusingly similar to the ALEXA mark as they each add a generic term, “support” or “solutions,” along with a hyphen and the “.us” ccTLD. Complainant also argues that Respondent’s <echo-alexa.us> domain name is confusingly similar to Complainant’s ECHO and ALEXA marks as it incorporates both marks and adds a hyphen and the “.us” ccTLD. Adding generic terms, hyphens, and ccTLDs to a complainant’s mark generally fails to distinguish a domain name for the purposes of Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).); see also Blizzard Entertainment, Inc. v. XINXIU ZENG / haimin liang, FA 1736365 (Forum July 19, 2017) (finding that the addition of punctuation—specifically, a hyphen—did not sufficiently distinguish the disputed domain name from complainant’s registered mark); see also Blue Cross and Blue Shield Association v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶4(a)(i) analysis because domain name syntax requires TLDs.”). Accordingly, the Panel finds that the <alexa-support.us>, <alexa-solutions.us>, and <echo-alexa.us> domain names are confusingly similar to Complainant’s ALEXA and ECHO marks.
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 Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant contends that Respondent has no rights or legitimate interests in the <alexa-support.us>, <alexa-solutions.us>, and <echo-alexa.us> domain names, as Respondent is not commonly known by the domain names, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use its marks. The WHOIS identifies “Joseph Livingstone” as the registrant of the disputed domain names. The Panel therefore finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same); see also Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sept. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”).
Complainant argues that Respondent uses the disputed domain names to pass off as Complainant and promote Respondent’s web design and search engine optimization services. Using a confusingly similar domain name to pass off as a complainant and offer competing services does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use names under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii). See BALENCIAGA SA v. ling lin, FA 1768542 (Forum Feb. 16, 2018) (“The disputed domain names incorporate Complainant's registered mark, and are being used for websites that prominently display Complainant's mark and logo, along with apparent images of Complainant's products, offering them for sale at discounted prices. The sites do not disclaim any connection with Complainant, and in fact seem to be designed to create an appearance of such a connection. Such use does not give rise to rights or legitimate interests.”); see also Vanguard Trademark Holdings USA LLC v. Dan Stanley Saturne, FA 1785085 (Forum June 8, 2018) (“Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use” where “Respondent is apparently using the disputed domain name to offer for sale competing services.”). Complainant provides a screenshot of the resolving webpage for the disputed domain names, each of which displays Complainant’s ALEXA mark along with information about its website development services. Accordingly, the Panel finds that Respondent’s attempts to pass off as Complainant while offering competing services fails to confer rights and legitimate interests in the domain names under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant demonstrates that Respondent uses the disputed domain names to pass off as Complainant, creating the false impression that its website originates with or is endorsed by Complainant and disrupting Complainant’s business, presumably for commercial benefit. Using a confusingly similar domain name in a manner disruptive of a complainant’s business by trading upon the goodwill of a complainant for commercial gain can evince bad faith under Policy ¶¶ 4(b)(iii) & (iv). See ShopStyle, Inc. v. Tuan Chen, FA 1760231 (Forum Jan. 4, 2018) (“Respondent registered and is using a domain name that is nearly identical to Complainant's trademark for a website that imitates Complainant's site and is obviously intended to create and profit from confusion with Complainant. This behavior is indicative of bad faith registration and use under paragraphs 4(b)(iii) and 4(b)(iv) of the Policy.”); see also Colin LeMahieu v. NANO DARK, FA 1786065 (Forum June 9, 2018) (Finding bad faith under Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv) where the respondent used the domain name to offer competing cryptocurrency products). Accordingly, the Panel finds that Respondent disrupts Complainant’s business and attempts to commercially benefit off Complainant’s mark in bad faith under Policy ¶¶ 4(b)(iii) & (iv).
Complainant argues that Respondent had actual knowledge of Complainant’s rights in the ALEXA and ECHO marks at the time of registering the infringing domain names. Complainant contends that Respondent’s knowledge can be inferred given Respondent’s use of Complainant’s logos and images on the resolving webpage along with Respondent’s advertising of Complainant’s products. The Panel agrees and finds that Respondent had actual knowledge of Complainant’s mark, demonstrating bad faith registration under Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”).
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 <alexa-support.us>, <alexa-solutions.us>, and <echo-alexa.us> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 22, 2019
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