DECISION

 

Amazon Technologies, Inc. v. Marc Hannouf

Claim Number: FA2309002061669

 

PARTIES

Complainant is Amazon Technologies, Inc. ("Complainant"), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Marc Hannouf ("Respondent"), France.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <amazoncryptocoin.net>, registered with NameCheap, Inc.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on September 13, 2023; Forum received payment on September 13, 2023.

 

On September 14, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <amazoncryptocoin.net> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 14, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 4, 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@amazoncryptocoin.net. Also on September 14, 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 October 5, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant states that it is a leading online retailer offering products and services in more than 100 countries around the world. In 1994, Complainant's Founder Jeff Bezos developed an innovative plan to sell a wide selection of books over the Internet. Complainant opened its virtual doors in July 1995, offering online retail store services featuring books via the web site <www.amazon.com>. In its first four weeks of operation, the company shipped product to customers in all 50 states and in more than 45 other countries. On May 16, 1996, less than a year after its website launched, Complainant was featured on the front page of The Wall Street Journal. In recognition of Complainant's, in 1999—only five years after its launch—Time Magazine named Mr. Bezos "Person of the Year." The article described Complainant as the "company everyone wants to be like". Complainant's website is the 4th most-viewed website in the United States and the 11th most-viewed website globally, according to public statistics offered by Internet site ranking company similarweb. More than 30 million users have "liked" and more than 29 million users follow Complainant's Facebook page. Complainant has more than 4 million followers on Twitter. Complainant has more than 300 million active customer accounts. Complainant's services include AMAZON COINS, a virtual currency for app and in-app purchases. Complainant has rights in the AMAZON and AMAZON COINS marks through their registration with multiple agencies around the world, including in United States in, respectively, 1997 and 2017. The AMAZON mark is famous.

 

Complainant alleges that the disputed domain name is confusingly similar to its AMAZON mark as it incorporates mark in its entirety and merely adds the descriptive/generic term "cryptocurrency" and the ".net" generic top-level domain ("gTLD"); and that it is confusingly similar to its AMAZON COINS mark as it consists of the mark with the letter "s" omitted and the term "crypto" replacing the space.

 

According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant's marks and is not commonly known by the disputed domain name. Respondent does not use the disputed domain name for a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, the resolving website attempts to pass off as Complainant and purports to offer services that compete with those of Complainant, and it explicitly refers to Complainant's AMAZON COINS service.

 

Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith by disrupting Complainant's business by passing off as Complainant and promoting competing services. Respondent had actual knowledge of Complainant's rights in its marks. Respondent was previously found to have acted with bad faith with respect to Complainant's AMAZON and AMAZON COINS trademarks. Respondent used a privacy service.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant owns the mark AMAZON and uses it for its online retail services, which include the AMAZON COINS cryptocurrency service.

 

Complainant's rights in its mark date back to 1997.

 

The disputed domain name was registered in 2022.

 

Complainant has not licensed or otherwise authorized Respondent to use its mark.

 

The resolving website purports to offer services that compete with those of Complainant; it explicitly refers to Complainant's AMAZON COINS service.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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 alleges that the disputed domain name is confusingly similar to its AMAZON COINS mark. Since, as discussed below, other elements are dispositive for the instant case, the Panel need not consider this allegation.

 

The disputed domain name incorporates Complainant's AMAZON mark in its entirety and merely adds the descriptive/generic term "cryptocurrency" and the ".net" generic top-level domain ("gTLD"). Under Policy ¶ 4(a)(i), adding a gTLD and generic/descriptive terms is generally insufficient in differentiating a disputed domain name from the mark it incorporates. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element."); see also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word "advisors" and the gTLD ".com" did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant's mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant alleges that Respondent attempts to pass of as Complainant, because the resolving website displays confusingly similar derivatives of Complainant's logos. The Panel disagrees: in the Panel's view, the graphical elements on the resolving website are not confusingly similar to Complainant's logos. Thus the Panel will not further discuss this allegation.

 

Complainant has not licensed or otherwise authorized Respondent to use its AMAZON mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See Tercent Inc. v. Lee Yi, FA 139720 (Forum Feb. 10, 2003) (stating "nothing in [the respondent's] WHOIS information implies that [the respondent] is 'commonly known by' the disputed domain name" as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA 1574905 (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). Here, the WHOIS information for the disputed domain name lists the registrant as "Marc Hannouf". Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).

 

The resolving website purports to offer services that compete with those of Complainant. Previous Panels have found that use of a disputed domain name to offer goods or services in competition with those of a complainant does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Vanguard Trademark Holdings USA LLC v. Dan Stanley Saturne, FA 1785085 (Forum June 8, 2018) ("Respondent's use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use" where "Respondent is apparently using the disputed domain name to offer for sale competing services."). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services, or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

Complainant provides evidence showing that Respondent was previously found to have acted in bad faith with respect to Complainant's AMAZON and AMAZON COINS trademarks. However, it cites only one UDRP case to that effect. Since, as discussed below, other elements are dispositive for the instant case, the Panel need not determine whether Respondent has engaged in a pattern of bad faith registration and use of domain names.

 

Respondent (who did not reply to Complainant's contentions) has not presented any plausible explanation for its use of Complainant's mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent's failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.

 

Indeed, as already noted, the resolving website purports to offer services that compete with those of Complainant. Panels have held that registration and use of a disputed domain name to divert Internet traffic to a competing website offering the same or similar goods or services demonstrates bad faith registration and use under Policy ¶¶ 4(b)(iii) and/or (iv). See ZIH Corp. v. ou yang lin q, FA 1761403 (Forum Dec. 29, 2017) (Finding bad faith where Respondent used the infringing domain name to disrupt Complainant's business by diverting Internet users from Complainant's website to Respondent's website where it offered competing printer products); see also Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA 1579141 (Forum Oct. 15, 2014) ("Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant."). Thus the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iii) and/or Policy ¶ 4(b)(iv).

 

Further, Respondent registered the disputed domain name with actual knowledge of Complainant's mark: the resolving website explicitly refers to Complainant's AMAZON COINS service. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant's rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) ("There is no place for constructive notice under the Policy."); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) ("The Panel notes that although the UDRP does not recognize 'constructive notice' as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it."); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant's rights in the mark prior to Respondent's registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <amazoncryptocoin.net> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist

Dated: October 5, 2023