Amazon Technologies, Inc. v. Mario G. Stine / Theda Folkerts / leo chen
Claim Number: FA2201001982419
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Mario G. Stine / Theda Folkerts / leo chen (“Respondent”), Kansas, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <blinkaccessories.online>, <blinkcamerasales.store>, <blinkfactorysale.store>, and <blinkonlinesales.store>, (‘the Domain Names’) registered with Dynadot, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 28, 2022; the Forum received payment on January 28, 2022.
On February 1, 2022, Dynadot, LLC confirmed by e-mail to the Forum that the <blinkaccessories.online>, <blinkcamerasales.store>, <blinkfactorysale.store>, and <blinkonlinesales.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 February 2, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 22, 2022 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@blinkaccessories.online, postmaster@blinkcamerasales.store, postmaster@blinkfactorysale.store, postmaster@blinkonlinesales.store. Also on February 2, 2022, 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 February 24, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
The Domain Names all contain Complainant’s BLINK trademark and have all resolved to online retail stores that promote competing third-party cameras. <blinkcamerasales.store> and <blinkonlinesales.store> had the same nominal owner and substantially identical Privacy and Refund Policies. <blinkcamerasales.store> <blinkfactorysale.store>, and <blinkonlinesales.store> were registered on the same day, January 4, 2022. <blinkaccessories.online> was registered 2 days later, on January 6, 2022. All Domain Names were registered with the same registrar (Dynadot). <blinkaccessories.online> and <blinkonlinesales.store> both displayed oversized “Cash on Delivery” logos in the landing page footers.
Theda Folkerts, the nominal registrant for <blinkaccessories.online>, has been previously found to register BLINK domains using multiple aliases. See Amazon Technologies, Inc. v. Theda Folkerts / azu seedorf / Douglas Hall / Kimberly Ford / Timothy McGraw / John Fitzpatrick / Linsa Starling / Clayton S. Sailor, FA2110001967621 (Forum Nov. 3, 2021) (“…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”); and Amazon Technologies, Inc. v. Clayton S. Sailor / Theda Folkerts / G H, FA2112001978005 (Forum Jan. 24, 2022) (“…the Panel finds that this Complaint may relate to all of the Domain Names because they are registered by the same domain name holder).
Accordingly the Panel finds that this Complaint may relate to all of the Domain Names because they are registered by the same domain name holder.
A. Complainant
The Complainant’s contentions can be summarized as follows:
The Complainant owns the trade mark BLINK registered, inter alia, in Singapore for home security goods and services since 2018.
The Domain Names registered in 2022 are confusingly similar to the Complainant’s trade mark containing it in its entirety adding only the generic terms “accessories”, “camera” “sale(s)”, “factory” or “online” and a TLD (.online, or .store).
Respondent has no rights or legitimate interests in the Domain Names, is not commonly known by them and is not authorized by the Complainant.
The web sites connected with the Domain Names used the Complainant’s trade mark in their mastheads to purport to offer competing security goods and services. This was not a bona fide offering of goods or services or legitimate noncommercial or fair use. It was registration and use in bad faith disrupting the Complainant’s business and diverting Internet users for commercial gain in actual knowledge of the Complainant and its rights. The Respondent has been the subject of other UDRP cases for registering domain names containing the Complainant’s BLINK mark in the name of aliases showing a pattern of competing activity. Using aliases as incorrect WhoIS details is bad faith per se.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant owns the trade mark BLINK registered, inter alia, in Singapore for home security goods and services since 2018.
The Domain Names registered in 2022 have been used for sites selling competing security goods using the Complainant’s BLINK mark in their mastheads. The Respondent has been the subject of previous adverse decisions under the UDRP for registering domain names containing the Complainant’s BLINK mark in similar circumstances.
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”).
The Domain Names consist of the Complainant’s BLINK mark (registered, inter alia, in Singapore for home security goods and services since 2018), the generic terms “accessories”, “camera” “sale(s)”, “factory” or “online” and a TLD (.online, or .store).
Previous panels have found confusing similarity when a respondent merely adds generic terms to a Complainant's mark. See PG&E Corp. v. Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). Accordingly the Panel agrees that the addition of the generic terms “accessories”, “camera” “sale(s)”, “factory” or “online” to the Complainant's mark does not prevent confusing similarity between the Domain Names and the Complainant's trade mark pursuant to the Policy.
The gTLDs “.store” and “.online” do not serve to distinguish the Domain Names from the Complainant’s mark, which is the distinctive component of the Domain Names. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Names are confusingly similar for the purposes of the Policy with a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorized the use of its BLINK mark. The Respondent has not answered this Complaint and there is no evidence that the Respondent is, in fact, commonly known by the Domain Names. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The use of the Domain Names is commercial and so cannot be legitimate noncommercial fair use.
The web sites attached to the Domain Names used the Complainant's BLINK mark in their mastheads to purport to offer competing home security goods and services. The Panel finds this use was confusing. As such it did not amount to the bona fide offering of goods and services. See Am. Intl Group Inc. v. Benjamin, FA 944242 (Forum May 11, 2007) (finding that the Respondent's use of a confusingly similar domain name to compete with the Complainant's business did not constitute a bona fide use of goods and services.). The Respondent has not answered this Complaint or explained why it should be allowed to use the Complainant’s trademarks in this way.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Names and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Respondent has been the subject of other adverse UDRP decisions for registering several domain names containing the Complainant’s BLINK mark under numerous aliases showing a pattern of competing activity and illustrative of bad faith.
In the opinion of the panelist the use made of the Domain Names in relation to the Respondent’s sites for competing home security products and services is confusing and disruptive in that visitors to the sites might reasonably believe they were connected to or approved by the Complainant as they purported to offer competing home security products and services under the Complainant’s BLINK mark in mastheads. The prior involvement of the Respondent in previous UDRP cases involving the Complainant’s BLINK mark shows actual knowledge of the Complainant, its rights, business products and services.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its websites by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web sites and products and services offered on them likely to disrupt the business of the Complainant. See Asbury Auto Group Inc v. Tex. Int'l Prop Assocs, FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to compete with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of a competing business and was therefore evidence of bad faith and use).
As such, the Panelist believes that the Complainant has made out its case that the Domain Names were registered and used in bad faith and has satisfied the third limb of the Policy under paragraphs 4(b)(ii), (iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <blinkaccessories.online>, <blinkcamerasales.store>, <blinkfactorysale.store>, and <blinkonlinesales.store> domain names be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: February 24, 2022
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