Amazon Technologies, Inc. v. azu seedorf / Cleveles Mary / Glova Karl / Nitsch Weiser / Jim Lee / M M / Ony Onv / James P. Biddle
Claim Number: FA2109001963698
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is azu seedorf / Cleveles Mary / Glova Karl / Nitsch Weiser / Jim Lee / M M / Ony Onv / James P. Biddle (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <blink-cameras.shop>, <blink-clearance.shop>, <blink-factory.shop>, <blink-outlet.store>, <blink-sales.shop>, <blink-usa.shop>, <blinkcamera-usa.shop>, <blinkclearance.shop>, <blinkcamera-us.store>, <blinkfactory.shop>, <blink-factory.store>, and <blink-securitycamera.store> (collectively “Domain Names”) registered with Dynadot, 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.
Nicholas J.T. Smith as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 14, 2021; the Forum received payment on September 14, 2021.
On September 15, 2021; September 16, 2021; September 21, 2021, Dynadot, LLC confirmed by e-mail to the Forum that the <blink-cameras.shop>, <blink-clearance.shop>, <blink-factory.shop>, <blink-outlet.store>, <blink-sales.shop>, <blink-usa.shop>, <blinkcamera-usa.shop>, <blinkclearance.shop>, <blinkcamera-us.store>, <blinkfactory.shop>, <blink-factory.store>, and <blink-securitycamera.store> domain names are registered with Dynadot, LLC and that Respondent is the current registrant of the names. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 September 21, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 12, 2021 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@blink-cameras.shop, postmaster@blink-clearance.shop, postmaster@blink-factory.shop, postmaster@blink-outlet.store, postmaster@blink-sales.shop, postmaster@blink-usa.shop, postmaster@blinkcamera-usa.shop, postmaster@blinkclearance.shop, postmaster@blinkcamera-us.store, postmaster@blinkfactory.shop, postmaster@blink-factory.store, postmaster@blink-securitycamera.store. Also on September 21, 2021, 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 October 14, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Nicholas J.T. Smith 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.
Complainant contends that the registrants for the Domain Names are related because: 1) the Domain Names are all similar variants of Complainant’s BLINK mark 2) The Domain Names were registered with the same Registrar and within a 2 month period of one another, and 3) All the Domain Names (save <blink-clearance.shop>, which is held by the same nominal registrant as <blink-factory.shop>) redirected what are very similar websites (the “Respondent’s Website”). In essence each of the Domain Names (save <blink-clearance.shop>) leads to a website offering unauthorized versions of Complainant’s products for sale, using the same layout, overall design, sharing numerous common elements and using the same photographs. This evidence, in the Panel’s opinion, strongly suggests that the Domain Names are owned/controlled by a single Respondent; were the named Respondents unrelated, it would be unlikely that eight unconnected entities would register very similar domain names and point them to essentially identical websites.
In light of these contentions, which none of the identified Respondents deny, the Panel concludes that, on the balance of probabilities, the Domain Names are commonly owned/controlled by a single Respondent who is using multiple aliases. Hereafter the single Respondent will be referred to as “Respondent” in this Decision.
A. Complainant
Complainant is one of the world’s leading online retailers, offering products and services to more than 100 countries around the globe. Complainant has rights in the BLINK mark through its registration of the BLINK mark in various countries around the world including with the Intellectual Property Office of Singapore (e.g., Reg. 40201811801Q, registered Jun. 18, 2018). Respondent’s <blink-cameras.shop>, <blink-clearance.shop>, <blink-factory.shop>, <blink-outlet.store>, <blink-sales.shop>, <blink-usa.shop>, <blinkcamera-usa.shop>, <blinkclearance.shop>, <blinkcamera-us.store>, <blinkfactory.shop>, <blink-factory.store>, and <blink-securitycamera.store> domain names are confusingly similar to Complainant’s BLINK mark. Respondent incorporates the mark in its entirety adding generic and/or geographical terms and either the “.store” or “.shop” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <blink-cameras.shop>, <blink-clearance.shop>, <blink-factory.shop>, <blink-outlet.store>, <blink-sales.shop>, <blink-usa.shop>, <blinkcamera-usa.shop>, <blinkclearance.shop>, <blinkcamera-us.store>, <blinkfactory.shop>, <blink-factory.store>, and <blink-securitycamera.store> domain names as Respondent is not commonly known by the Domain Names nor did Complainant authorize Respondent to use the BLINK mark in any way. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the Domain Names to pass off as Complainant either in furtherance of a phishing scheme or for the purpose of offering competing or counterfeit products.
Respondent registered and used the <blink-cameras.shop>, <blink-clearance.shop>, <blink-factory.shop>, <blink-outlet.store>, <blink-sales.shop>, <blink-usa.shop>, <blinkcamera-usa.shop>, <blinkclearance.shop>, <blinkcamera-us.store>, <blinkfactory.shop>, <blink-factory.store>, and <blink-securitycamera.store> domain names in bad faith as the Domain Names resolve to webpages where Respondent passes off as Complainant to offer counterfeit goods and services. Additionally, Respondent had actual knowledge of Complainant’s rights to the BLINK mark prior to registering the Domain Names based on the content of the Respondent’s Website.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the BLINK mark. Each of the Domain Names is confusingly similar to Complainant’s BLINK mark. Complainant has established that Respondent lacks rights or legitimate interests in the Domain Names and that Respondent registered and has used the Domain Names 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 Jurisprudential Overview 3.0 at ¶ 4.3; see also 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 BLINK mark under Policy ¶ 4(a)(i) through its registration of the mark with the Intellectual Property Office of Singapore (e.g., Reg. 40201811801Q, registered Jun. 18, 2018). Registration of a mark with a nation’s trademark agency is generally sufficient to demonstrate rights in a mark under Policy ¶ 4(a)(i). See Glashütter Uhrenbetrieb GmbH v. li zilin / QQ869292929, FA 1575562 (Forum Sept. 23, 2014) (holding, “Trademark registrations with a governmental authority are sufficient to prove rights in a mark pursuant to Policy ¶ 4(a)(i)”).
The Panel finds that each of the Domain Names is confusingly similar to the BLINK mark as they each incorporate the entire BLINK mark while adding generic (including geographic) terms, in some cases a hyphen and a gTLD. Adding a generic term, a hyphen and a gTLD to a mark fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II v. Svensson Viljae, FA 1784650 (Forum June 1, 2018) (finding confusing similarity where “[t]he disputed domain name <skechers-outlet.com> adds a hyphen and the generic term ‘outlet’ to Complainant's registered SKECHERS mark, and appends the ‘.com’ top-level domain.”); see also MTD Products Inc v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Names. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Names under Policy ¶ 4(a)(ii), and then 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) and 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.”). The Panel holds that Complainant has made out a prima facie case.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Names as Respondent is not commonly known by the Domain Names, nor has Complainant authorized Respondent to use the BLINK mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). The WHOIS information of record lists “azu seedorf / Cleveles Mary / Glova Karl / Nitsch Weiser / Jim Lee / M M / Ony Onv / James P. Biddle” as the registrants of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Names in accordance with Policy ¶ 4(c)(ii).
Prior to the commencement of the proceeding each of the Domain Names save <blink-clearance.shop> resolved to the Respondent’s Website which, through the reproduction of the BLINK Mark, Complainant’s logo and reference to Complainant’s products, passes itself off as an official website of the Complainant for the purpose of selling unauthorized versions of Complainant’s goods, in direct competition with Complainant’s merchandise. The use of a confusingly similar domain name to resolve to a webpage that directly offers unauthorized versions of a complainant’s goods does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use; indeed it provides a false impression that the Respondent is affiliated with or authorized by Complainant. 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 Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name).
The Domain Name <blink-clearance.shop> resolves to a website which appears to be used to obtain click-through revenue by linking to third-party websites unrelated to any descriptive meaning of the Domain Name. Use of a domain name generate pay-per-click links unrelated to any descriptive meaning of the domain name is not a use indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Priceline.com LLC v. levesque, bruno, FA1506001625137 (Forum July 29, 2015) (“The Panel finds that Respondent’s attempt to divert Internet users who are looking for products relating to Complainant’s famous mark to a website unrelated to the mark does not engage in a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it make a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds on the balance of probabilities that, at the time of registration of the Domain Names (July-September 2021), Respondent had actual knowledge of Complainant’s BLINK mark since the Respondent’s Website passes itself off as an official website of the Complainant and as such reproduces material from Complainant and makes repeated references to Complainant and its products. Furthermore, there is no obvious explanation, nor has one been provided, for an entity to register 12 domain names that contain the BLINK mark and use 11 of them to redirect visitors to a website selling goods in direct competition with the Complainant under the BLINK mark other than to take advantage of Complainant’s reputation in the BLINK mark. In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and uses the Domain Names in bad faith to create confusion with Complainant’s BLINK mark for commercial gain by using 11 of the 12 (the domain name <blink-clearance.shop> likely being held pending similar use) confusingly similar Domain Names to resolve to a website that, through the use of the BLINK mark and logo, mimics Complainant’s websites and offers unauthorized versions of Complainant’s products in direct competition with the Complainant’s products. Using a confusingly similar domain name to trade upon the goodwill of a complainant can evince bad faith under Policy ¶ 4(b)(iv). See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). See also See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant or is otherwise affiliated or associated with Complainant.”).
The Panel finds 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 <blink-cameras.shop>, <blink-clearance.shop>, <blink-factory.shop>, <blink-outlet.store>, <blink-sales.shop>, <blink-usa.shop>, <blinkcamera-usa.shop>, <blinkclearance.shop>, <blinkcamera-us.store>, <blinkfactory.shop>, <blink-factory.store>, and <blink-securitycamera.store> domain names be TRANSFERRED from Respondent to Complainant.
Nicholas J.T. Smith, Panelist
Dated: October 15, 2021
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