Amazon Technologies, Inc. v. Helder Teixeira Costa
Claim Number: FA2011001919859
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, US. Respondent is Helder Teixeira Costa (“Respondent”), New York, US.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amazonparadise.net>, registered with Google 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 6, 2020; the Forum received payment on November 6, 2020.
On November 6, 2020, Google LLC confirmed by e-mail to the Forum that the <amazonparadise.net> domain name is registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google 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 November 11, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 2, 2020 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@amazonparadise.net. Also on November 11, 2020, 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, in both English and Portuguese, a Notification of Respondent Default. Respondent did however send an email to the Forum, see below.
On December 8, 2020, 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. In 1994, Complainant’s Founder Jeff Bezos developed an innovative plan to sell a wide selection of books over the Internet. Complainant opened its virtual doors in July 1995, offering online retail store services featuring books. In its first four weeks of operation, the company shipped product to customers in all 50 states and in more than 45 other countries. On May 16, 1996, less than a year after its website launched, Complainant was featured on the front page of The Wall Street Journal. In recognition of Complainant’s success, in 1999—only five years after launch—Time Magazine named Mr. Bezos “Person of the Year.” The article described Complainant as the “company everyone wants to be like.” Today, Complainant offers products and services to more than 100 countries around the globe, and has expanded its offerings beyond retail book sales to a broad range of other products and services. Complainant’s main website is the 3rd most-viewed website in the United States and the 10th most-viewed website globally. As of 2014, Complainant had more than 244 million active customer accounts, which are unique email addresses that have placed an order within the prior 12 months. As of January 30, 2020, there were more than 150 million paid Amazon Prime members globally. Revenues for Complainant’s fiscal 2019 were more than $280 billion. Complainant’s worldwide expenditures on advertising and other promotional costs for 2018 were $8.2 billion. For the years, 2017, 2016, 2015, 2014, and 2013 advertising costs were $6.3 billion, $5.0 billion, $3.8 billion, $3.3 billion, and $2.4 billion, respectively. Complainant has rights in the AMAZON mark through its registration in the United States in 2004. The mark is registered elsewhere around the world and is famous.
Complainant also states that its customers can share authentic feedback – positive or negative – about products and services sold by Complainant using Complainant’s pioneering customer review platform. Consumers rely on reviews for a given product to make informed purchasing decisions and they trust that reviews reflect honest information and authentic sales activity. A very small minority of sellers attempts to gain an unfair competitive advantage by purchasing reviews or manipulating Complainant’s sales rankings with sham or choreographed sales. While small in number, the individuals offering paid reviews or sales rank manipulation services threaten to undermine the trust that customers and the vast majority of sellers place in Complainant, thereby tarnishing Complainant’s brand. Complainant’s Conditions of Use, Community Guidelines, and Seller Code of Conduct expressly prohibit manipulating reviews and sales rankings.
Complainant alleges that the disputed domain name is identical or confusingly similar to its mark as it contains the mark in its entirety and merely adds the generic term "paradise" and the ".net" gTLD. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Respondent is not affiliated with Complainant in any way or licensed to use the mark. Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the resolving website prominently displays Complainant's mark and logo and promises to offer refunds in exchange for reviews, creating a likelihood of confusion with Complainant. Respondent also uses the domain name to manipulate Complainant's ratings system and commit fraud. Respondent violates and induces others to violate Complainant's terms of service. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent disrupts Complainant's business by using the domain name to deceive Complainant's consumers and undermine trust in Complainant's business. Respondent uses the domain name to create a false impression of affiliation with Complainant. Respondent uses the domain name for an illegal purpose which also shows bad faith. Respondent registered the domain name with actual knowledge of Complainant's rights in its mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding. It its email to the Forum, Respondent states: “I will take it down, will case be dismissed?”
The Registration Agreement is written in Portuguese, thereby making the language of the proceedings Portuguese.
Pursuant to UDRP Rule 11(a), the Panel has the authority to determine a different language for the proceedings, having regard to the circumstances of the case. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Pursuant to Rule 10(b), Respondent must be given a fair opportunity to present its case. Pursuant to Rule 10(c), the Panel may weigh the relative time and expense in enforcing the Chinese language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).
In the present case, the resolving website is in English and Respondent has sent an email to the Forum in English. Pursuant to Rule 11(a), having regard to the circumstances of the case, the Panel determines that fairness and justice to both parties, and due expedition, are best satisfied by conducting the remainder of the proceedings in English. See H-D U.S.A., LLC v. Yoshihiro Nakazawa, FA 1736477 (Forum July 21, 2017); see also UBS AG v. ratzel laura, FA 1735687 (Forum July 14, 2017).
For the reasons set forth below, the Panel will not make any findings of fact.
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.
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."
The Panel interprets Respondent’s email to the Forum as consent to transfer the disputed domain name. Thus, in the present case, the parties have both asked for the domain name to be transferred to the Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.
See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
Given the common request of the Parties, it is Ordered that the <amazonparadise.net> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: December 8, 2020
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