Amazon Technologies, Inc. v. Domain Sales - (Expired domain caught by auction winner) c/o Dynadot
Claim Number: FA2208002010518
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Domain Sales - (Expired domain caught by auction winner) c/o Dynadot (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <alexagamecontrol.com>, registered with Dynadot, LLC.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to Forum electronically on August 31, 2022. Forum received payment on August 31, 2022.
On September 1, 2022, Dynadot, LLC confirmed by e-mail to Forum that the <alexagamecontrol.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. 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 1, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 21, 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@alexagamecontrol.com. Also on September 1, 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, Forum transmitted to the parties a Notification of Respondent Default.
On September 28, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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
In 2014 Complainant launched the Amazon Echo smart speaker, which features the Alexa cloud-based voice service, capable of voice interaction and inter alia controlling games and game consoles. The <alexagamecontrol.com> domain name is confusingly similar to Complainant’s registered ALEXA and ALEXA GAMES trademarks.
Respondent does not have a legitimate interest in the <alexagamecontrol.com> domain name. Respondent has not used the domain name in connection with a bona fide offering of goods or services; is not making a noncommercial fair use of the domain name; and has never been legitimately known as or referred to as ALEXA, ALEXA GAMES, or any variations thereof.
Respondent registered the domain name in bad faith. Since the domain name combines Complainant’s famous ALEXA trademark with “game” and “game control,” which are widely used features of Complainant’s Alexa voice service, and since Respondent registered the domain name on the same day as Complainant announced its Alexa Game Control service, it is apparent that Respondent registered the domain name with knowledge of Complainant’s rights and intended to create an association with Complainant and its goods and services. This reflects opportunistic bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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”).
Identical and/or Confusingly Similar
Complainant has shown that it has rights in the ALEXA mark through numerous registrations, including with the USPTO (e.g., Reg. 5,563,417, registered Sep. 18, 2018). The Panel finds Respondent’s <alexagamecontrol.com> domain name to be confusingly similar to Complainant’s mark, only differing by the addition of the descriptive words “gamecontrol”, which do not distinguish the domain name from the mark, and the inconsequential “.com” generic top-level domain (“gTLD”), which may be ignored.
Complainant has established this element.
Rights or Legitimate Interests
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <alexagamecontrol.com> domain name was registered on August 23, 2022, many years after Complainant has shown that its ALEXA mark had become famous worldwide and on the same day as Complainant announced Alexa Game Control, which allows gamers to use voice control to interact with and play games on PCs and gaming consoles. It resolves to a Go Daddy “domain broker service” page, indicating that the domain name may be for sale.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <alexagamecontrol.com> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019).
Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Registration and Use in Bad Faith
The four illustrative circumstances set out in paragraph 4(b) of the Policy as evidence of the registration and use of a domain name in bad faith for purposes of paragraph 4(a)(iii) are not exclusive.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s famous ALEXA mark when Respondent registered the <alexagamecontrol.com> domain name on the same day as Complainant announced its Alexa Game Control service. This demonstrates opportunistic bad faith. See e.g., Amazon Technologies, Inc. and A9.com, Inc. v. Doshi, FA2109001962451 (Forum Oct. 8, 2021) (“Opportunistic bad faith may be found under Policy ¶ 4(a)(iii) where a respondent registers a confusingly similar domain name in close temporal proximity to a relevant announcement or major development relating to the trademark(s) at-issue.”); Sota v. Waldron, D2001-0351 (WIPO June 18, 2001) (finding that a respondent’s registration of the <seveballesterostrophy.com> domain name at the time of the announcement of the Seve Ballesteros Trophy golf tournament “strongly indicates an opportunistic registration”); and Sun v. Color Vivo, FA0909001282898 (Forum Oct. 21, 2009) (finding that registration of <javastore.com> a little over a month after the complainant’s announcement of a similarly named service was evidence of “opportunistic bad faith under Policy ¶ 4(a)(iii)”).
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <alexagamecontrol.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: September 29, 2022
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