Amazon Technologies, Inc. v. David Baker / Australian Exchange Platform Pty Ltd
Claim Number: FA2305002044001
Complainant is Amazon Technologies, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is David Baker / Australian Exchange Platform Pty Ltd (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bitcoinamazons.com>, registered with Dreamscape Networks International Pte Ltd.
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 May 10, 2023. Forum received payment on May 10, 2023.
On May 12, 2023, Dreamscape Networks International Pte Ltd confirmed by e-mail to Forum that the <bitcoinamazons.com> domain name is registered with Dreamscape Networks International Pte Ltd and that Respondent is the current registrant of the name. Dreamscape Networks International Pte Ltd has verified that Respondent is bound by the Dreamscape Networks International Pte Ltd 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 15, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 5, 2023 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@bitcoinamazons.com. Also on May 15, 2023, 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 June 9, 2023, 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
Complainant, Amazon Technologies, Inc., offers a wide variety of products and services. Its financial services include credit card and payment services and the virtual currency Amazon Coins. Complainant has rights in the AMAZON mark based upon registrations with trademark offices worldwide, including the United States Patent and Trademark Office (“USPTO”). Respondent’s <bitcoinamazons.com> domain name is confusingly similar to Complainant’s mark.
Respondent does not have rights or legitimate interests in the <bitcoinamazons.com> domain name. Respondent is not licensed or authorized to use Complainant’s AMAZON mark and is not commonly known by the domain name. Respondent does not use the domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to offer financial services that compete with Complainant’s business and to pass himself off as Complainant.
When Complainant contacted Respondent about disputed domain name, Respondent stated:
“Our Token, Bitcoin Amazon was designed and named after the Amazon rainforest in South America. Our aim is to use parts of the sales of this coin to assist in saving the great Amazon rainforest. I doubt whether Amazon Technologies have a patent on the Amazon Rain Forest and the Amazon River. We are not using the name Amazon by itself. Our token is called Bitcoin Amazon. As you can see from our website, the background of the Bitcoin Amazon is an actual picture of a rainforest, so people can identify the token as Amazon Rainforest.”
This explanation is not credible and creates no rights or legitimate interests in the domain name since, among other things, the resolving website for the domain name does not mention the Amazon River or the Amazon Rainforest even once.
Respondent registered the <bitcoinamazons.com> domain name in bad faith with actual knowledge of Complainant’s rights in the AMAZON mark and uses it in bad faith to pass himself off as Complainant and to offer financial services that compete with those of Complainant. As a purported issuer of virtual currency, Respondent could not be unfamiliar with Complainant and its financial services. Furthermore, Respondent’s use of a privacy shield when registering the disputed domain name shows bad faith registration and use.
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”).
Complainant has shown that it has rights in the AMAZON mark based upon numerous registrations around the world, including with the USPTO (e.g., Reg. No. 2,078, 496, registered on July 15, 1997) and with IP Australia (e.g., Reg. No. 830014, registered on July 16, 2002). The Panel finds Respondent’s <bitcoinamazons.com> domain name to be confusingly similar to Complainant’s AMAZON mark as it contains the mark in its entirety, merely adding the generic term “bitcoin” and the letter “s”, which additions are insufficient to distinguish the domain name from the mark. The inconsequential generic top-level domain (“gTLD”) “.com” 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 <bitcoinamazons.com> domain name was registered on March 13, 2023, many years after Complainant has shown that its AMAZON mark had become famous worldwide. It resolves to a website with a landing page featuring an image of a coin labelled BITCOIN AMAZON, with a tree in the background. The website promotes an initial coin offering (ICO) for “Bitcoin Amazon” virtual currency. There are no disclaimers of any association with Complainant.
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 <bitcoinamazons.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
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s famous AMAZON mark and its virtual currency Amazon Coins when Respondent registered the <bitcoinamazons.com> domain name and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with Complainant’s mark as to the source of Respondent’s website and of the goods and services promoted on that website. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).
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 <bitcoinamazons.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: June 12, 2023
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