Amazon Technologies, Inc. v. Nice IT Services Group Inc. / Customer Domain Admin
Claim Number: FA2205001996670
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Nice IT Services Group Inc. / Customer Domain Admin (“Respondent”), Dominica.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amazon2aws.com>, (‘the Domain Name’) registered with NameSilo, 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 May 17, 2022; the Forum received payment on May 17, 2022.
On May 17, 2022, NameSilo, LLC confirmed by e-mail to the Forum that the <amazon2aws.com> 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 May 18, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 7, 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@amazon2aws.com. Also on May 18, 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 June 9, 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 Name be transferred from Respondent to Complainant.
A. Complainant
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of registered trademarks for AMAZON and AWS registered, inter alia, in the USA for online retail related services with first use recorded as 1995 and 2002 respectively.
The Domain Name registered in 2022 is confusingly similar to the Complainant’s marks incorporating them both and adding the number 2 and a gTLD which does not prevent confusing similarity.
The Respondent does not have rights or a legitimate interest in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The Domain Name does not resolve to an active web site but is associated with an IP address that has been linked with malware. This is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is registration and use in bad faith.
The Respondent has been the subject of a number of adverse decisions under the Policy showing a pattern of cybersquatting activity. The Respondent has also used an obviously incorrect telephone number on the WhoIS database.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of registered trademarks for AMAZON and AWS registered, inter alia, in the USA for online retail related services with first use recorded as 1995 and 2002 respectively.
The Domain Name registered in 2022 has not been used. The IP address associated with the Domain Name has been associated with malware. Respondent has been the subject of a number of adverse decisions under the UDRP. Respondent has used an obviously incorrect telephone number on the WhoIS database.
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 Name in this Complaint combines the AMAZON and AWS marks owned by the Complainant (registered in, inter alia, USA for on line retail related services with first use recorded as 1995 and 2002 respectively), the number 2 and the gTLD “.com”.
Previous panels have found confusing similarity when a respondent merely adds generic numbers to a Complainant's mark. See Nintendo of Am., Inc. v. Lizmi, FA 94329 (Forum Apr. 24, 2000). The Panel agrees that the addition of the number 2 to a domain name containing two of the Complainant’s marks does not prevent confusing similarity between the Domain Name and each of those marks under the Policy.
The gTLD “.com” does not serve to distinguish the Domain Name from the Complainant’s marks. 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 finds that the Domain Name is confusingly similar to each of the AMAZON and AWS trademarks in which the Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
The Complainant has not authorised the use of its marks. The Respondent does not appear to be 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 Panel notes the association of an IP address associated with the Domain Name with malware, but no actual evidence of use for malware of the Domain Name has been presented with the Complaint.
There has been no use of the mark. See Hewlett-Packard Co. v. Shemesh, FA 434145 (Forum Apr. 20, 2005) (Where the panel found inactive use is not a bona fide offering of goods or services pursuant to Policy 4(c)(i).).
The Respondent has not answered the Complaint or offered any explanation for registration of the Domain Name containing two registered marks of the Complainant.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The use of two of the Complainant’s registered marks in the same Domain Name shows the Respondent was aware of the Complainant and its rights, business and services at the time of registration of the Domain Name and is targeting the Complainant.
The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from or exploit the trademarks of another. Passive holding of a domain name containing marks with a reputation can be bad faith registration and use. See Telstra Corporation Limited v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).
The Respondent has been the subject of a number of adverse decisions under the UDRP which is indicative of a pattern of activity. See DIRECTV, LLC v. michal restl c/o Dynadot, FA 1788826 (Forum July 5, 2018) (“The record contains evidence of Respondents previous eleven UDRP actions, all of which resulted in the transfer of the domain names, thus establishing bad faith per Policy ¶ 4(b)(ii).”)
Registration of a disputed domain name with false WHOIS information such as an obviously incorrect telephone number suggests bad faith under Policy 4(a)(iii). See CNU ONLINE Holdings, LLC v. Domain Admin / Whois Privacy Corp., FA1504001614972 (Forum May 29, 2015) (“As the Panel sees that Respondent has provided false or misleading WHOIS information, the Panel finds bad faith in Respondent’s registration of the disputed domain name per Policy ¶ 4(a)(iii).”).
As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amazon2aws.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: June 10, 2022
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