Amazon Technologies, Inc. v. Ravi Kalara / Wise Move
Claim Number: FA1905001844746
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Ravi Kalara / Wise Move (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <downloadalexaappechosetup.com>, <downloadappalexaecho.com>, <echosetupsupport.com>, and <downloadappalexa.net>, all registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 23, 2019; the Forum received payment on May 23, 2019.
On May 25, 2019, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail message addressed to the Forum that each of the domain names <downloadalexaappechosetup.com>, <downloadappalexaecho.com>, <downloadappalexa.net> and <echosetupsupport.com> are registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the names. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 29, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 18, 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@downloadalexaappechosetup.com, postmaster@downloadappalexaecho.com, postmaster@echosetupsupport.com, postmaster@downloadappalexa.net. Also, on May 29, 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 domain name registrations as its technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On June 20, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant uses the marks ECHO and ALEXA in the marketing of products and services related to smart speakers and voice recognition software.
Complainant holds a registration for the ECHO trademark and service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 5,469,992, registered as of May 15, 2018, on the basis of an application filed on April 30, 2015.
Respondent registered the domain name <downloadalexaappechosetup.com> on September 22, 2018, the domain name <downloadappalexaecho.com> on February 13, 2018, the domain name <echosetupsupport.com> on May 4, 2018, and the domain name <downloadappalexa.net> on February 7, 2018.
Each of the domain names is confusingly similar to one or both of Complainant’s ECHO and ALEXA marks.
Respondent has not been commonly known by any of the domain names.
Complainant has not authorized Respondent to use either of the ECHO and ALEXA marks in any manner.
Respondent’s use of the domain names does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Rather, Respondent is using the domain names to divert Internet users to websites that attempt to pass Respondent off as Complaint in order to further a phishing scheme and divert consumers to websites offering products or services sold in competition with the business of Complainant.
The landing pages for all of the domain names display Complainant’s trademarks and Complainant’s official <alexa.amazon.com> URL alongside images of Complainant’s products and Complainant’s logos in order to simulate an official software download channel but which in fact promote Respondent’s alternative toll-free contact phone numbers.
Moreover, instead of leading to Complainant’s official website or to authorized application downloads, Respondent’s “Download Alexa App” buttons and falsely labeled “alexa.amazon.com” hyperlinks lead to either (a) a sequence of screens that solicit users’ personal information (including name, email and telephone) and then generate a screen entitled “ACTIVATION ERROR” that states “there was a problem with your request … please wait for a minute, our support team will call you to complete the setup”; or (b) a single screen entitled “ACTIVATION ERROR” that solicits users’ personal information under the heading “Generate Ticket”.
Respondent’s “activation errors” are hard coded and they always appear, which means that they are phony.
Respondent has no rights to or legitimate interests in any of the domain names.
Respondent uses the domain names to acquire commercial gain by creating confusion among Internet users as to the possibility of Complainant’s affiliation with or endorsement of Respondent’s resolving websites.
Respondent knew of Complainant’s rights in the ECHO and ALEXA marks prior to registering the domain names.
Respondent registered and is using the domain names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain names registered by Respondent are confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of any of the domain names; and
(3) the same domain names were registered and are being used by Respondent in bad faith.
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:
ii. Respondent has no rights to or legitimate interests in respect of any of the domain names; and
iii. the domain names were registered and are being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable claims and inferences set out in the Complaint unless the supporting evidence is manifestly contradictory. See, for example, Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). But see eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [...] the Panel finds it appropriate to dismiss the Complaint”).
Complainant has rights in the ECHO trademark and service mark and the ALEXA trademark sufficient for purposes of Policy ¶ 4(a)(i) by reason of its registration of those marks with a national trademark authority, the USPTO. See, for example, DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum December 30, 2018):
Complainant’s ownership of a USPTO registration for … [its mark]… demonstrate[s] its rights in such mark for the purposes of Policy ¶ 4(a)(i).
This is true without regard to whether Complainant’s rights in its marks arise from their registration in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here India). See, for example, W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum August 24, 2010):
[T]he 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.
We note that, although Complainant’s registration for the ECHO mark became effective on May 15, 2018, while Respondent’s registration for the domain name <downloadappalexaecho.com> occurred earlier, on February 13, 2018, and the registration for Respondent’s <echosetupsupport.com> domain name came into being on May 4, 2018, it is well established that Complainant’s mark registration relates back to the date of filing of its registration application, April 30, 2015, so that the mark registration is senior in time, and, therefore, in priority, to both of the cited domain name registrations. See, for example, Glasgow 2014 Limited v. Tommy Butler, Case No. D2012-2341 (WIPO January 12, 2013):
Complainant is the registered proprietor of a … word mark registration, the rights dating back to the filing of the application with the … [relevant national trademark authority]….
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s domain names: <downloadappalexa.net>, <downloadappalexaecho.com>, <downloadalexaappechosetup.com> and <echosetupsupport.com> are all confusingly similar to one or both of Complainant’s ECHO and ALEXA marks, as they incorporate the marks, singly or together, in their entirety, merely adding one or more of the generic terms “app,” “download,” “setup,” or “support,” all of which relate to aspects of Complainant’s business, plus one of the generic Top Level Domains (“gTLD’s”) “.com” or “.net.” These alterations of the marks, made in forming the domain names, do not save them from the realm of confusing similarity under the standards of the Policy. See, for example, Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum January 22, 2016) (finding that the addition of a generic term and a gTLD to the mark of another in creating a domain name was insufficient to distinguish one from the other under Policy ¶ 4(a)(i)).
As
to the effect of adding generic terms relating to the business of a UDRP
complainant in forming a domain name, see Chanel, Inc. v. Cologne Zone,
D2000-1809 (WIPO February 22, 2001):
CHANEL, the salient feature of the Domain Names, is identical to a mark in which Complainant has shown prior rights. The addition of the generic term, “perfumes” is not a distinguishing feature, and in this case seems to increase the likelihood of confusion because it is an apt term for Complainant’s business.
And, as to the effect under the Policy of adding a gTLD to a complainant’s mark in creating a domain name, see, for example, Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Forum September 27, 2002):
[I]t is a well-established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.
This is because every domain name requires a TLD.
Under Policy ¶ 4(a)(ii), Complainant must make out a prima facie showing that Respondent lacks both rights to and legitimate interests in the contested
<downloadappalexa.net>, <downloadalexaappechosetup.com>, <downloadappalexaecho.com> and <echosetupsupport.com> domain names, whereupon the burden shifts to Respondent to show that it does have such rights or interests. On the point, see Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … 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, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain names. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c) (i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by any of the domain names <downloadappalexa.net>, <downloadalexaappechosetup.com>, <downloadappalexaecho.com> and <echosetupsupport.com>, and that Complainant has not authorized Respondent to use the ECHO or ALEXA marks in any manner. Moreover, the pertinent WHOIS information identifies the registrant of the domain names only as “Ravi Kalara/Wise Move,” which does not resemble any of them. On this record, we conclude that Respondent has not been commonly known by the disputed domain names so as to have acquired rights to or legitimate interests in them within the ambit of Policy ¶ 4(c)(ii). See, for example, Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum September 4, 2018) (concluding that a respondent was not commonly known by a disputed domain name incorporating the GOOGLE mark where the relevant WHOIS record identified that respondent as “Bhawana Chandel,” and nothing in the record showed that that respondent was authorized to use a UDRP Complainant’s mark in any manner). See also Navistar International Corporation v. N Rahmany, FA 620789 (Forum June 8, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by a disputed domain name where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name).
We next observe that Complainant asserts, without objection from Respondent, that all of the <downloadappalexaecho.com>, <echosetupsupport.com>, <downloadalexaappechosetup.com> and <downloadappalexa.net> domain names resolve to websites that attempt to pass Respondent off as Complainant and display hyperlinks to commercial websites offering for sale technical support services in competition with the business of Complainant. This use is neither a bona fide offering of goods or services by means of the domain names under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of them under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain names as provided in those subsections of the Policy. See, for example, Walgreen Co. v. Privacy protection service - whoisproxy.ru, FA 1785188 (Forum June 10, 2018):
Respondent uses the … domain name to pass itself off as Complainant and display links to a website offering products similar to those offered by Complainant. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use under Policy ¶ 4(c)(iii).
Complainant further asserts, again without objection from Respondent, that Respondent also employs the domain names to “phish” for Internet users’ sensitive personal information. This use too is neither a bona fide offering of goods or services by means of the domain names under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of them under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain names as provided in those subsections of the Policy. See Morgan Stanley v. Zhange Sheng Xu / Zhang Sheng Xu, FA1501001600534 (Forum February 26, 2015):
The Panel agrees that the respondent’s apparent phishing attempt provides further indication that the respondent lacks any rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent’s use of the challenged <downloadalexaappechosetup.com>, <downloadappalexaecho.com>, <echosetupsupport.com>, and <downloadappalexa.net> domain names, as alleged in the Complaint, is an attempt by Respondent by passing itself off as Complainant online in order to profit from the confusion thus caused among internet users as to the possibility of Complainant’s association with the domain names. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in registering and using the domain names. See, for example, Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding bad faith registration and use of a domain name under Policy ¶ 4(b)(iv) where a respondent used the domain name to resolve to a website at which that respondent passed itself off as a UDRP complainant in order to offer for sale online cryptocurrency services in direct competition with that complainant’s business).
We are also convinced by the evidence that Respondent employs the contested domain names to entice unsuspecting Internet users to reveal to it their sensitive personal information, in a fraudulent process sometimes called “phishing.” Under Policy ¶ 4(b)(iv), this use of the domain name likewise shows Respondent’s bad faith in registering and using the domain names. See, for example, Google Inc. v. Domain Admin / Whois Privacy Corp., FA1622862 (Forum August 10, 2015).
Finally, under this head of the Policy, it is plain from the record that Respondent knew of Complainant and its rights in the ECHO and ALEXA marks when it registered the disputed domain names. This further demonstrates Respondent’s bad faith in registering them. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum February 6, 2014):
The Panel … here finds actual knowledge [of a complainant’s rights in a mark incorporated in a domain name, and therefore bad faith registration of that domain name] through the name used for the domain and the use made of it.
See also Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum January 5, 2018):
[T]he fact Respondent registered a domain name that looked identical to the … mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the domain names <downloadappalexa.net>, <downloadalexaappechosetup.com>, <downloadappalexaecho.com> and <echosetupsupport.com> be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: July 2, 2019
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