Amazon Technologies, Inc. v. feng ouyang
Claim Number: FA2106001952033
Complainant is Amazon Technologies, Inc. ("Complainant"), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is feng ouyang ("Respondent"), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <adamazon.net> and <tgamazon.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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 21, 2021; the Forum received payment on June 21, 2021.
On June 22, 2021, GoDaddy.com, LLC confirmed by email to the Forum that the <adamazon.net> and <tgamazon.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 24, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 14, 2021 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@adamazon.net, postmaster@tgamazon.com. Also on June 24, 2021, the Written Notice of the Complaint, notifying Respondent of the email 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 20, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant and its predecessors in interest have used AMAZON and AMAZON.COM since 1995 in connection with online retail and related goods and services. Complainant asserts that its AMAZON mark has become famous, noting prior decisions under the Policy that have so found, and states that it "is routinely ranked as one of the most valuable brands in the world." Complainant claims worldwide rights in the mark and cites numerous U.S. trademark registrations dating back to 1997.
Respondent registered the disputed domain names <adamazon.net> and <tgamazon.com> via a privacy registration service in March 2021. The underlying registration data includes random character strings in place of a valid street address or city, along with an invalid postal code. The <adamazon.net> domain name is being used for a website that is branded "ADAmazon," offering "advertising promotion software" and claiming "a long-term partnership with Amazon." The <tgamazon.com> domain name does not currently resolve, but it appears in the source code for <adamazon.net>. Complainant states that Respondent is not commonly known by any variation of Complainant's AMAZON mark; is not licensed to use the mark; is not an authorized vendor, supplier, or distributor of Complainant's goods and services; and does not have a partnership or any other relationship with Complainant.
Complainant contends on the above grounds that each of the disputed domain names <adamazon.net> and <tgamazon.com> is confusingly similar to its AMAZON mark; that Respondent lacks rights or legitimate interests in the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that each of the disputed domain names is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and are 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."
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <adamazon.net> incorporates Complainant's registered AMAZON trademark, adding the generic term "ad" (a shortened form of "advertisement" and the country code for Andorra) at the beginning and appending the ".net" top-level domain. The disputed domain name <tgamazon.com> similarly incorporates Complainant's AMAZON mark, adding the letters "tg" (the country code for Togo) and appending the ".com" top-level domain. In both cases, the additions fail to substantially diminish the similarity between the domain names and Complainant's mark. See, e.g., Google Inc. v. Xuyecheng, D2011-0557 (WIPO May 23, 2011) (finding <googletg.com> confusingly similar to GOOGLE); Google Inc. v. Billy Domains c/o Billy Renau, FA 1139230 (Forum Mar. 12, 2008) (finding <googlead.com> confusingly similar to GOOGLE); Amazon.com, Inc. v amazonkw.com, FA 570133 (Forum Nov. 16, 2005) (finding <amazonkw.com> confusingly similar to AMAZON); Amazon.com, Inc. v. MCL International Ltd., D2000-1678 (WIPO Mar. 12, 2001) (finding <yuamazon.com> confusingly similar to AMAZON.COM). The Panel considers the disputed domain names to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain names, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
Each of the disputed domain names incorporates Complainant's registered mark without authorization, and the only apparent use to which they have been put is for a website that displays Complainant's mark, falsely claims a connection with Complainant, and promotes advertising services that compete with services offered by Complainant. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., JUUL Labs, Inc. v. Juule Cigar, FA 1937858 (Forum Apr. 30, 2021) (finding lack of rights or interests in similar circumstances).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain names, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain names.
Finally, Complainant must show that the disputed domain names were registered and are being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered a domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent used a privacy registration service to register two domain names incorporating Complainant's famous mark, while providing incomplete and partially fictitious underlying registration information. One of the domain names (and apparently the other as well, albeit indirectly) is being used in connection with a website that falsely claims a connection to Complainant in order to promote competing services. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., JUUL Labs, Inc. v. Juule Cigar, supra (finding bad faith in similar circumstances); Amazon.com, Inc. v amazonkw.com, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <adamazon.net> and <tgamazon.com> domain names be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: July 23, 2021
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page