Amazon Technologies, Inc. v. Richard Hargrave / M M / L H / Minyu Lin / David A. McFalls / Nitsch Weiser / feifei lin / Aliff 017 / Eldre Metterick / Fafaya Lliu
Claim Number: FA2111001973192
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Richard Hargrave / M M / L H / Minyu Lin / David A. McFalls / Nitsch Weiser / feifei lin / Aliff 017 / Eldre Metterick / Fafaya Lliu (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <blinkcamera.online>, <blinkcameras.store>, <blink-cameraus.store>, <blinkforhome.club>, <blink-minicamera.store>, <blink-outlets.store>, <blink-overstock.store>, <blinksale-usa.shop>, <blinkusa.shop>, <ringusa.shop>, and <blink-deals.store> (collectively “Domain Names”). Each of the Domain Names save <blinkforhome.club> (which is registered with Namesilo, Llc) is 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 November 14, 2021; the Forum received payment on November 14, 2021.
On November 15, 2021 Namesilo, Llc confirmed by e-mail to the Forum that the <blinkforhome.club> domain name is registered with Namesilo, Llc and that Respondent is the current registrant of the name. Namesilo, Llc; has verified that Respondent is bound by the Namesilo, 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 17, 2021 Dynadot, LLC confirmed by e-mail to the Forum that the <blinkcamera.online>, <blinkcameras.store>, <blink-cameraus.store>, <blink-minicamera.store>, <blink-outlets.store>, <blink-overstock.store>, <blinksale-usa.shop>, <blinkusa.shop>, <ringusa.shop>, and <blink-deals.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 December 1, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 21, 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@blinkcamera.online, postmaster@blinkcameras.store, postmaster@blink-cameraus.store, postmaster@blinkforhome.club, postmaster@blink-minicamera.store, postmaster@blink-outlets.store, postmaster@blink-overstock.store, postmaster@blinksale-usa.shop, postmaster@blinkusa.shop, postmaster@ringusa.shop, postmaster@blink-deals.store. Also on December 1, 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 December 27, 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 or RING marks 2) The Domain Names, save <blinkforhome.club>, were registered with the same Registrar 3) The Domain Names were registered within a 2 month period of one another 4) The nominal registrants MM and Nitsch Weiser have previously been the subject of proceedings under the Policy where they have been found to have been aliases for a single entity registering and using domain names in bad faith, and 5) All the Domain Names redirect or have redirected what are very similar websites (the “Respondent’s Websites”). In essence each of the Domain Names leads to a website offering unauthorized versions of Complainant’s BLINK or RING products for sale, using similar layouts, overall design and in some cases 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 10 unconnected entities would register very similar domain names and point them to similar websites operating on an identical business model.
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 retailers, offering products and services to more than 100 countries around the globe. Complainant has rights in the BLINK and RING marks through its registrations of the marks with multiple trademark agencies around the world, including a registration for the BLINK mark with the Intellectual Property Office of Singapore (e.g., Reg. 40201811801Q, registered Jun. 18, 2018) and a registration for the RING mark with the USPTO (e.g. Reg. 4,724,984, registered Apr. 21, 2015). Respondent’s <blinkcamera.online>, <blinkcameras.store>, <blink-cameraus.store>, <blinkforhome.club>, <blink-minicamera.store>, <blink-outlets.store>, <blink-overstock.store>, <blinksale-usa.shop>, <blinkusa.shop>, <ringusa.shop>, and <blink-deals.store> domain names are confusingly similar to Complainant’s BLINK and RING marks. Respondent incorporates the marks in their entirety and adds generic and/or geographical terms along with a generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <blinkcamera.online>, <blinkcameras.store>, <blink-cameraus.store>, <blinkforhome.club>, <blink-minicamera.store>, <blink-outlets.store>, <blink-overstock.store>, <blinksale-usa.shop>, <blinkusa.shop>, <ringusa.shop>, and <blink-deals.store> domain names as Respondent is not commonly known by the Domain Names nor did Complainant authorize Respondent to use the BLINK or RING marks in any way. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent’s domain names resolve to webpages that make use of its BLINK or RING marks and offer similar competing or counterfeit products.
Respondent registered and used the <blinkcamera.online>, <blinkcameras.store>, <blink-cameraus.store>, <blinkforhome.club>, <blink-minicamera.store>, <blink-outlets.store>, <blink-overstock.store>, <blinksale-usa.shop>, <blinkusa.shop>, <ringusa.shop>, and <blink-deals.store> domain names in bad faith as respondent makes use of the BLINK and RING marks to offer similar, competing products to Complainant’s business. Additionally, Respondent had actual knowledge of Complainant’s rights to the BLINK and RING marks prior to registering the Domain Names based on the content of the Respondent’s Websites.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the BLINK and RING marks. Each of the Domain Names is confusingly similar to one of Complainant’s BLINK and RING marks. 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). Complainant has rights in the RING mark under Policy ¶ 4(a)(i) through its registration of the mark with the USPTO (e.g., Reg. 4,724,984, registered Apr. 21, 2015). 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 one of the BLINK or RING marks as they each incorporate the entire BLINK or RING marks 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 or RING marks. 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 “Richard Hargrave / M M / L H / Minyu Lin / David A. McFalls / Nitsch Weiser / feifei lin / Aliff 017 / Eldre Metterick / Fafaya Lliu” 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 resolved to the Respondent’s Websites which, through the reproduction of the BLINK or RING marks, Complainant’s logos and reference to Complainant’s products, pass themselves off as official websites 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 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 (September-November 2021), Respondent had actual knowledge of Complainant’s BLINK and RING marks since each of the Respondent’s Websites 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 11 domain names that contain the BLINK or RING marks and them to redirect visitors to a website selling goods in direct competition with the Complainant under the BLINK or RING marks other than to take advantage of Complainant’s reputation in the BLINK or RING marks. 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 or RING marks for commercial gain by using the confusingly similar Domain Names to resolve to a website that, through the use of the BLINK or RING marks, 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 <blinkcamera.online>, <blinkcameras.store>, <blink-cameraus.store>, <blinkforhome.club>, <blink-minicamera.store>, <blink-outlets.store>, <blink-overstock.store>, <blinksale-usa.shop>, <blinkusa.shop>, <ringusa.shop>, and <blink-deals.store> domain names be TRANSFERRED from Respondent to Complainant.
Nicholas J.T. Smith, Panelist
Dated: January 4, 2022
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