WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
A, Inc. v. Lorna Kang
Case No. D2002-1089
1. The Parties
The Complainant is A, Inc., in Seattle, Washington, United States of America.
The Respondent is Lorna Kang of Malaysia.
2. The Domain Name and Registrar
The subject domain name is registered with iH Inc. d/b/a DotR, Miami, Florida, United States of America.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 28, 2002. On November 29, 2002, the Center transmitted by email to iH Inc. d/b/a DotR a request for registrar verification in connection with the domain name at issue. On November 29, 2002, iH Inc. d/b/a DotR transmitted by email to the Center its verification response. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 3, 2002. In accordance with the Rules, paragraph 5(a), the due date for Response was December 23, 2002. The Respondent did not submit any response. Accordingly, the Center notified the Respondent�s default on December 25, 2002.
The Center appointed Edward C. Chiasson Q.C., M. Scott Donahey and Dimitris Oekonomidis as Panelists in this matter on January 13, 2003.
The Panel finds that it was properly constituted. Each member of the Panel has submitted a Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
By registering the subject domain name with the Registrar, the Respondent agreed to the resolution of disputes pursuant to the Policy and Rules.
4. Factual Background
The following information derives from the Complaint.
The Complainant is one of the best-known companies forging the Internet revolution.
Jeff Bezos ("Bezos"), the company�s founder, was a pioneer in the use of the Internet as a medium of commerce. In 1995, Bezos created an Internet Web site ("A" Site) that permitted consumers around the world to purchase books on-line.
He chose the name "a" for the site because the Amazon River in South America is the biggest river in the world and one of the company�s goals was eventually to offer the largest selection of book titles in the world. The Complainant was one of the first corporations to make the name of its business identical to the domain name from which its business operates so that anyone using the Internet to find its Web site need only remember the name of the company.
Since its inception, the "A" Site has continuously operated from the Internet address "www.a." When the Complainant opened its cyber-doors, its site primarily featured books, which is still an integral part of the Complainant�s business. Since then, the Complainant has expanded its operations to include a broader selection of products, offering a full line of goods ranging from computer products and electronics to toys, compact discs and movies on video tape and DVD.
Over the past seven years, the Complainant has experienced considerable success. Beginning with only two employees and operating from the garage in the home where Bezos and his wife lived, the Complainant is now a publicly traded company that employs more than 7,000 individuals. Its revenues have grown from $15.7 million in 1996 to over $3 billion in fiscal 2001 an increase of over 19,000%. Revenues at the end of the third quarter of 2002 exceeded $2.5 billion.
From the start, the Complainant very quickly developed a strong international presence. In its first four weeks of operation, the company shipped product to customers in over 45 countries. In its first 11 months of operation, the "A" Site attracted customers from 66 countries. Today, tens of millions of customers from over 220 countries have made purchases through the "A" Site.
In the first three quarters of 2002, international sales accounted for over one-third of the Complainant�s total sales revenues.
As the Complainant has expanded its business internationally, it has begun to operate Web sites that use Country Code Top Level Domain Names that are specific to individual countries. For example, sites to target customers respectively in the United Kingdom, Germany, France, Japan and Canada. The Complainant operates service centers in Slough, England and in Regensberg, Germany and is accessible to consumers everywhere in the world where there is access to the Internet.
Courts in the United States and Greece have entered judgments for the Complainant that attest to the strong association between the AMAZON.COM® mark and the services offered by the Complainant.
A few examples demonstrate how ubiquitous this symbol has become:
htens of millions of customers from over 220 countries have made purchases through the "A" Site; all of these purchasers have, at a minimum, seen the AMAZOMCOM® mark on the Web site, on the packaging in which his or her order was shipped and in email communications that confirm each order;
hmany millions more have come to know the AMAZOMCOM® mark through the Complainant�s extensive advertising in a variety of media; since 1996, the Complainant has spent over $87.9 million on advertising, all of which makes prominent use of the AMAZOMCOM® mark on television and radio and in newspapers and magazines;
haccording to the MMXI Europe May 2000 European Audience Ratings Report, the , and sites reach more consumers in Europe than any other site on the Internet;
ha recent survey by Media Metrix, a company that monitors traffic to popular ecommerce Web sites, identified the "A" Site as one of the most frequently visited shopping sites on the Internet (ahead of such popular sites as
hthe Complainant�s achievements have generated tremendous attention in the media; thousands of articles have been written about the company over the last few years; feature stories in Fortune, Business Week, The New York Times, USA Today, Advertising Age and Wired have touted the company�s success and have identified it as a leading force in the "New Economy"; the December 27, 1999, issue of Time Magazine devoted more than 25 pages to stories about the Complainant and its business;
hthe Complainant�s name is found on literally thousands of Internet Web sites; important Internet retailers (e.g., AOL.com) carry a "banner" ads on their homepages; more than 500,000 other Web site operators around the world have become the Complainant "Associates," and are permitted to link to the "A" site and to display the AMAZOMCOM® mark on their Web sites;
ha recent study by Interbrand Group, a leading international brand consultancy company, ranked the 100 most valuable brands in the world, all of which Interbrand identified as having a value exceeding $1 billion; Interbrand�s study included the AMAZOMCOM® mark, ranking its value above such well-known trade names as "Hilton®" and "Guinness"; the most recent Interbrand study recognized the AMAZOMCOM® mark�s value in the year 2001, ranking its value above 24 other trade names such as "Burger King®" and "Wall Street Journal®."
The AMAZON.COM® mark is famous by virtue of its inherent distinctiveness and substantial secondary meaning as a designation of the source of the products.
The Complainant has sold on and has had continuous and broad use of the Internet for virtually the entire life of the Internet as a commercial medium.
The AMAZON.COM® mark is registered in the European Union and in 72 individual countries and has over 400 additional registration applications pending all over the world. A is a registered trademark with the United States Patent and Trademark Office for a computerized on-line search and ordering service featuring the wholesale and retail distribution of books, music, motion pictures, multimedia products and computer software in the form of printed books, audiocassettes, videocassettes, compact disks, floppy disks, CD ROMs, and direct digital transmission, in Class 35.
The AMAZOMCOM® mark is particularly well known among Internet users, in the trading areas and channel of trade used by both the Complainant and the Respondent. There are no similar marks in common commercial use. A recent review of the database maintained by the United States Patent and Trademark Office reveals no registration (other than those owned by Complainant) for any mark that included both "amazon" and "com." No other major on-line business and no major "brick and mortar" bookstore use any variant of "Amazon" in its name.
On or about July 1, 2002, the Complainant learned that the Respondent had registered the subject domain name with DotR on April 30, 2002.
The subject domain name points to a Web site operated from the Internet address "http://" ("O Web site"), which is a directory index Web site featuring links to Web sites offering goods and services, including books, video games, computer products, electronics, and compact discs, that are directly competitive with those offered on the Complainant�s Site. Indeed, the "o" Web site offers products in each of the categories that make up the Complainant�s core business.
In addition to pointing the web site to which the subject domain name resolves to the "o" Web site, Respondent subjects Internet users who enter the site to a "pop-up" window that offers the user an opportunity to enter an internet casino. The viewer�s attempt to close these "pop-up" windows often results in the appearance of yet another "pop-up" window advertising additional casino gaming, Internet services not affiliated with the Complainant.
If the Internet user chooses to enter the casino, he or she is "mousetrapped" into a barrage of online casino "pop-ups." "Mousetrapping" disables the back arrow button of the viewer�s Internet browser, preventing the user from exiting the site without closing the browser altogether. In addition to preventing Internet users from exiting a site without closing their browsers, mousetrapping subjects Internet users to the annoying bombardment of unrelated and unwanted "pop-up" windows.
The Respondent likely receives commissions from sales of products to consumers who reach the many linked Web sites at the "o" index and the online casino "pop-ups" through the Respondent�s use of the subject domain name.
On July 29, 2002, the Complainant attempted to contact the Respondent�s Administrative and Technical Contact at the email address provided by the Respondent to DotR. To date, the Respondent has neither answered nor acknowledged the Complainant�s email.
The Respondent�s registration and use of the subject domain name creates the impression among consumers that the Respondent�s business or the "o" Web site business and products are affiliated with the Complainant. Neither the Respondent nor the "o" Web site are affiliated with the Complainant. The Complainant has not granted the Respondent the right or permission to use the AMAZOMCOM® trademark.
The Respondent�s business does not have a brand identity of its own that could attract a high levels of customer goodwill and name association.
The Respondent did not participate in this proceeding.
5. Parties� Contentions
A. Complainant
The Complainant relies on its use and registration of the mark "a" and contends that the subject domain is confusingly similar.
The Complainant says that the Respondent does not have a legitimate interest in the subject domain name because the Respondent is not affiliated with the Complainant and does not have permission to use the Complainant�s mark. Prior to registering the subject domain name, the Respondent was not known by the mark. In addition, the Respondent is not making a legitimate noncommercial or fair use of the subject domain name, without intent for commercial gain by misleadingly diverting consumers and tarnishing the Complainant�s mark. The Respondent is making commercial use of the subject domain name to divert consumers from the Complainant�s Web site in order to earn commissions on the sale of, among other things, books, video games, computer products, electronics, and compact discs, and to earn advertising revenue from the online casino sites whose pop-up advertisements are linked to the site to which the subject domain name resolves.
As to bad faith, the Complainant states that the Respondent is using the subject domain name primarily for the purpose of disrupting the business of the Complainant which is a competitor of the Respondent. The Complainant asserts that the intentional use of the subject domain name to attract, for commercial gain, Internet users to the Respondent�s Web site by creating a likelihood of confusion with the Complainant�s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent�s Web site, or of a product or service on Respondent�s Web site, is evidence of bad faith. The Complainant also points to the Respondent�s failure to respond to the Complainant�s attempt to make contact.
B. Respondent
The Respondent did not reply to the Complainant�s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy requires the Complainant to prove that:
(i) the domain name is identical or confusingly similar to a service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the domain name;
(iii) the domain name has been registered and is being used in bad faith.
Paragraph 4(b) provides for the implication of evidence of bad faith in a number of circumstances:
(i) circumstances that indicate that the Respondent has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of the Complainant, for valuable consideration in excess of the Respondent�s documented out-of-pocket costs directly related to the domain name;
(ii) registration of the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct;
(iii) registration of the domain name primarily for the purpose of disrupting the business of a competitor;
(iv) by using the domain name, intentionally attempting to attract, for commercial gain, Internet users to the Respondent�s website or other on-line location, by creating a likelihood of confusion with the Complainant�s mark as to the source, sponsorship, affiliation, or endorsement of the website or location or of a product or service on the website or location.
These are illustrative and do not represent the only circumstances from which may arise evidence of bad faith.
The Complainant refers to a number of previous domain name dispute and domestic court decisions. While these are neither controlling nor binding on this Administrative Panel, reference to them often is of assistance.
A. Identical or Confusingly Similar
It is clear that the Complaint has an interest in the words "a", both through registration and use. The subject domain name differs only by the addition of the letter "g" to the word " amazon" and ".com." The latter is of no consequence. The "g" is a subtle change, which clearly is a purposeful misspelling. Spoken, the words "amazon" and "amazong" are not significantly different. The likelihood of confusion is strong.
The Administrative Panel is satisfied that the Complainant has met the requirements of paragraph 4(a)(i).
B. Rights or Legitimate Interests
It is apparent that the Respondent registered and uses the subject domain name for the purpose of attracting custom away from the Complainant. While she is entitled to compete with the Complainant, using its mark for that purpose is not a legitimate use.
A Respondent is not obliged to participate in a domain name dispute proceeding, but its failure to do so can lead to an administrative panel accepting as true the assertions of a Complainant that are not unreasonable and leaves the Respondent open to the legitimate inferences that flow from the information provided by a Complainant.
Although use is not the focus of the inquiry, it is relevant to the legitimacy of the interest in question. In this case, the Respondent was not known by the Complainant�s mark prior to the registration of the subject domain name. It is not authorized by the Complainant to use it. The subject domain name is a subtle misspelling of the Complainant�s mark. The objective of the registration appears to have been to draw customers from the Complainant to the Respondent by using the notoriety of the Complainant�s mark.
These facts support a clear inference that the Respondent does not have a legitimate interest in the subject domain name and the Respondent has done nothing to rebut that inference.
The Administrative Panel is satisfied that the Complainant has met the requirements of paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
To support bad faith, the Complainant relies on essentially the same facts upon which it relies to establish the other ingredients of its case.
A finding that a Respondent does not have a legitimate interests in a domain name which is confusingly similar to the mark of a Complainant does not automatically lead to a conclusion of bad faith, but the facts that support the finding generally are relevant to the inquiry.
The context of the registration and use of the subject domain name includes the notoriety of the Complainant�s mark, the business activities it has carried on, the obvious misspelling of the Complainant�s mark in the subject domain name, the Respondent�s direct competition with the Complainant using the subject domain name and the Respondent�s failure to respond to the Complainant�s attempt to make contact.
These facts are evidence from which an inference of bad faith may be made. The Respondent has done nothing to displace the inference.
The Administrative Panel is satisfied that the Complainant has met the requirements of paragraph 4(a)(iii).
7. Decision
Based on the information provided to it and on its findings of fact, the Administrative Panel concludes that the Complainant has established its case.
The Complainant asks that the subject domain name be transferred to it. The Administrative Panel so orders.
Edward C. Chiasson, Q.C
Presiding Panelist
M. Scott Donahey
Panelist
Dimitris Oekonomidis
Panelist
Dated: January 24, 2003
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