Amazon.com, Inc. v. Whois Privacy inc
Claim Number: FA0508000536281
PARTIES
Complainant
is Amazon.com, Inc. (“Complainant”),
represented by Kevin M. Hayes, of Klarquist Sparkman, LLP,
One World Trade Center, Suite 1600, 121 SW Salmon Street, Portland, OR 97204. Respondent is Whois Privacy inc (“Respondent”), 323 W. 77 st., New York, NY
10025.
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <amazln.com>,
registered with Intercosmos Media Group,
Inc. d/b/a Directnic.com.
PANEL
The
undersigned certifies that they have acted independently and impartially and to
the best of their knowledge has no known conflict in serving as Panelists in
this proceeding.
Professor
Darryl C. Wilson, Chair; Edward C. Chiasson, Esq.; and Steven L. Schwartz as
Panelist.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum electronically on August
9, 2005; the National Arbitration Forum received a hard copy of the Complaint
on August 12, 2005.
On
August 10, 2005, Intercosmos Media Group, Inc. d/b/a Directnic.com confirmed by
e-mail to the National Arbitration Forum that the domain name <amazln.com> is registered with Intercosmos
Media Group, Inc. d/b/a Directnic.com and that the Respondent is the current
registrant of the name. Intercosmos
Media Group, Inc. d/b/a Directnic.com has verified that Respondent is bound by
the Intercosmos Media Group, Inc. d/b/a Directnic.com registration agreement
and has thereby agreed to resolve domain-name disputes brought by third parties
in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the
“Policy”).
On
August 12, 2005, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting a deadline of September
1, 2005 by which Respondent could file a Response to the Complaint, was
transmitted to Respondent via e-mail, post and fax, to all entities and persons
listed on Respondent’s registration as technical, administrative and billing
contacts, and to postmaster@amazln.com by e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the National
Arbitration Forum transmitted to the parties a Notification of Respondent
Default.
On September 12, 2005, pursuant to Complainant’s request
to have the dispute decided by a three-member
Panel, the National Arbitration Forum
appointed Professor Darryl C. Wilson, Chair; Edward C. Chiasson, Esq.;
and Steven L. Schwartz as Panelist.
Having
reviewed the communications records, the Administrative Panel (the
"Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision
based on the documents submitted and in accordance with the ICANN Policy, ICANN
Rules, the National Arbitration 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
asserts that it is the owner of an internationally famous trademark known as Amazon.com®, as
well as a famous mark, Amazon.
Complainant states that it has Amazon trademark registrations in over forty
nations, in addition to numerous registrations in the United States. Complainant asserts that it is one of the
world’s best Internet retailers, selling a variety of goods and services from
its Amazon.com® website. Complainant also alleges that Respondent
registered a confusingly similar typo of Complainant’s Amazon.com®
trademark without authorization, in a bad faith attempt to benefit from
Complainant’s name and reputation.
Complainant further asserts that Respondent has no rights or legitimate
interests in the disputed domain name since the website to which the domain
name resolves indicates no connection with a bona fide offering of goods or
services. Complainant asserts that
Respondent’s bad faith is illustrated by Respondent’s engagement in typosquatting
and an intent to create a likelihood of confusion with Complainant’s mark.
B. Respondent
The
Respondent did not file an answer.
FINDINGS
Complainant, Amazon.com, Inc., is
well-known as an Internet retailer throughout the world. Complainant is the owner of numerous
domestic and international trademark registrations for Amazon.Com and Amazon, in
various classes covering many goods and services. Complainant has used the Amazon.com mark in commerce since at least as early
as 1995 as evidenced by U.S. Federal Registration No. 2,078,496 dated July 15,
1997, issued for computerized on-line ordering services featuring the wholesale
and retail distribution of books.
Complainant has sold several billion dollars worth of goods to customers
in more than 220 countries and has spent over $240 million dollars on
advertising its Amazon
trademark since 1996. Complainant has,
through various means, actively policed its marks to prohibit its unauthorized
use, including the successful filing of a significant number of UDRP
proceedings against cybersquatters worldwide engaged in the misuse of its mark,
AMAZON.COM.
Respondent is listed as Whois Privacy,
Inc. at an address located in New York, NY.
Respondent registered the disputed domain name, <amazln.com>, with Intercosmos Media Group, Inc. d/b/a
Directnic.com whose address is located in New Orleans, LA. Respondent’s domain name, <amazln.com>, is a variant of
Complainant’s registered trademarks amazon.com and Amazon, as it simply substitutes the letter “l”
for the letter “o.”
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain Name
Dispute Resolution Policy (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.”
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(e), 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 and inferences set forth in the Complaint as
true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing,
inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the
respondent’s failure to respond allows all reasonable inferences of fact in the
allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009
(WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to
accept as true all allegations of the Complaint.”).
Paragraph
4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a
trademark or service mark in which the Complainant has rights;
(2)
the
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.
The Panel finds that Complainant has established
rights in the Amazon.com
mark through its numerous registrations both domestically and abroad. Beginning with its initial United States
federal registration (Reg. No. 2,078,496) and the first use noted thereon,
Complainant has continuously used its mark for a variety of goods and
services. See Vivendi Universal Games v. XBNet Ventures, Inc., FA 198803
(Nat. Arb. Forum Nov. 11, 2003) (“Complainant’s federal trademark registrations
establish Complainant’s rights in the Blizzard mark.”).
The Panel also finds that Respondent’s
domain name, <amazln.com>, is
confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). The difference between the disputed domain
and Complainant’s mark, Amazon.com, is only one letter, located in close
proximity to the proper letter on the standard QWERTY keyboard, and reflects a
common typographical error that might befall Internet users seeking
Complainant’s website. See Neiman Marcus Group, Inc. v. Party
Night, Inc., FA 114546 (Nat. Arb. Forum July 23, 2002) (finding that the
<neimanmacus.com> domain
name was a misspelling of the complainant’s Neiman Marcus mark and was a classic example of
typosquatting, which was evidence that the domain name was confusingly similar
to the mark).
The Panel finds, pursuant to Policy ¶
4(a)(ii), that Respondent does not have any rights or legitimate interests in
the disputed domain name. Respondent’s
failure to answer the Complaint allows the Panel to accept all reasonable
allegations and assertions set forth by Complainant as true. See
Bayerische Motoren Werke AG v. Bavarian AG, FA 110830 (Nat. Arb. Forum June
17, 2002) (finding that in the absence of a response the Panel is free to make
inferences from the very failure to do so and assign greater weight to
circumstances than it might otherwise do); see
also Geocities v. Geocities.Com, D2000-0326 (WIPO June 19, 2000) (finding
that the respondent has no rights or legitimate interests in the domain name
because the respondent never submitted a response or provided the Panel with
evidence to suggest otherwise).
Respondent is using the <amazln.com> domain name to operate a
website that features links to various commercial websites, including some
operated by Complainant’s competitors.
The Panel finds that Respondent’s use is not in connection with a bona
fide offering of goods or services pursuant to Policy ¶ 4(c)(i). See
Disney Enters., Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003)
(finding that the respondent’s diversionary use of the complainant’s mark to
attract Internet users to its own website, which contained a series of
hyperlinks to unrelated websites, was neither a bona fide offering of goods or
services nor a legitimate noncommercial or fair use of the disputed domain names).
Complainant has not licensed Respondent’s
use of <amazln.com> and
asserts that at the time of the Complaint, Respondent had owned the disputed
domain name for less than six months.
Respondent does not appear to be commonly known by the disputed domain
name, as Respondent’s whois record does not indicate Respondent is known as <amazln.com>. This is further support for the Panel’s
determination that Respondent’s rights or legitimate interests in the disputed
domain name are lacking. See Gallup, Inc. v. Amish Country Store,
FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not
have rights in a domain name when the respondent is not known by the mark).
The Panel finds, pursuant to ¶ 4(a)(iii),
that Respondent’s registration and use of <amazln.com> was in bad faith.
Respondent registered the disputed domain name with actual or
constructive knowledge of Complainant’s rights in the Amazon.com
mark. Complainant’s mark is a
well-known mark, having a degree of national and international fame and was
duly registered with the USPTO. See Orange Glo Int’l v. Blume, FA 118313
(Nat. Arb. Forum Oct. 4, 2002) (Complainant’s OXICLEAN mark is listed on the
Principal Register of the USPTO, a status that confers constructive notice on
those seeking to register or use the mark or any confusingly similar variation
thereof.”); see also Ty Inc. v. Parvin,
D2000-0688 (WIPO Nov. 9, 2000) (finding that the respondent’s registration and
use of an identical and/or confusingly similar domain name was in bad faith
where the complainant’s BEANIE BABIES mark was famous and the respondent should
have been aware of it).
Furthermore, Respondent’s domain name is
a typosquatted version of Complainant’s registered mark. Typosquatting is evidence of bad faith
pursuant to Policy ¶ 4(a)(iii). See Dermalogica, Inc.v. Domains to Develop,
FA 175201 (finding that <dermatalogica.com>
domain name was a “simple misspelling of the complainant’s DERMALOGICA mark
which indicated typosquatting and bad faith pursuant to 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 <amazln.com>
domain name be TRANSFERRED from Respondent to Complainant.
Professor Darryl C. Wilson, Chair
Edward C. Chiasson, Esq.; and
Steven L. Schwartz as Panelist
Dated: September 26, 2005
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