WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
A, Inc. v. Oluseyi Ikhizamah
Case No. D2002-1168
1. The Parties
The Complainant is A, Inc. of Seattle, Washington, United States of America, represented by Jones, Day, Reavis & Pogue of United States of America.
The Respondent is Oluseyi Ikhizamah of Lauderhill, Florida, United States of America.
2. The Domain Name and Registrar
The disputed domain name is registered with InnerWise, Inc. d/b/a ItsYourD.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on December 24, 2002. On January 6, 2003, the Center transmitted by email to InnerWise, Inc. d/b/a ItsYourD a request for registrar verification in connection with the domain name at issue. On January 13, 2003, InnerWise, Inc. d/b/a ItsYourD transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. 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 January 14, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was February 3, 2003. The Response was filed with the Center on February 5, 2003.
The Center appointed Roderick M. Thompson, M. Scott Donahey and Timothy D. Casey as Panelists in this matter on March 3, 2003. The Panel finds that it was properly constituted. Each member of the Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
On March 3, 2003, the Panel notified the Center that it had decided to exercise its discretion and would receive the late-filed Response. On March 4, 2003, the Center forwarded a copy of the email Response to the Panel.
4. Factual Background
Complainant is the well-known Internet retailer, A. It started in 1995, as an on line book store and today sells many other products including computers, and other electronics, CDs and toys. Complainant first registered the service mark AMAZON.COM with the U.S. Patent and Trademark Office on July 15, 1997, in Class 42 (on line ordering and distribution of books). It also has a U.S. registration dated June 23, 1998, in Class 35 for retail distribution of books, music, motion pictures, multimedia products audiocassettes and related products. Complainant has many additional registrations and pending applications in countries around the world.
On April 18, 2002, Respondent obtained a registration for . He is apparently using the site for an affiliate marketing program that provides links to web sites offering for sale products on the subject of earning a living from one�s home, including books, magazine subscriptions and audio cassettes.
5. Parties� Contentions
A. Complainant
Complainant asserts that it owns AMAZON.COM, a trademark known around the world for the Internet retailing business known by the same name. By virtue of its millions of customers, substantial advertising and inherent distinctiveness, Complainant alleges that AMAZON.COM is a famous mark. Complainant refers to and attaches several UDRP decisions ruling in its favor and attesting to the strength of the AMAZON.COM mark.
According to Complainant, Respondent is a "typosquatter," because is identical to the trademark with the addition of the letter "z" which is located directly below the letter "a" on a standard keyboard. A typosquatter deliberately chooses a name that is one erroneous key stroke away from a well-known internet address. When the particular typographical error is made, the user is unintentionally diverted to the typosquatter�s website. Complainant alleges that a consumer who is so misdirected may incorrectly believe that Respondent is associated with or approved by Complainant. This, Complainant reasons, is a misappropriation of the goodwill and notoriety of AMAZON.COM because the goods offered are closely related to some of the products offered for sale at .
Complainant alleges that Respondent has no rights or legitimate interest in because Respondent (1) prior to the dispute, did not use the site for bona fide offering of goods and services, (2) was not commonly known by the name before registering and (3) is not making a legitimate noncommercial or fair use of .
Complainant asserts that Respondent registered the domain name primarily for the purpose of disrupting Amazon�s business and to create a likelihood of confusion with AMAZON.COM. Respondent explains that consumers who are seeking the website are diverted to Respondent�s website when they mistakenly type "za." Respondent�s website provides no disclaimer or explanation regarding its relationship with AMAZON.COM. Respondent�s website offers for sale directly competitive products such as books. Complainant points out that in a previous UDRP proceeding, A, Inc. v. Victor Korotkov, WIPO Case No. D2002-0516 (August 13, 2002) the domain name ("amazon" with the typo of an extra "m") was found to have been registered and used in bad faith for similar reasons.
B. Respondent
Respondent denies knowing of the website "a" and its business. He concedes to only being aware of the geographic location "the amazon," but not of the Complainant. Further, Respondent asserts that he "coined" the name zamazon based on his last name Ikhizamah, pointing out that both his name and "zamazon" have in common the phrase "zama." Finally Respondent asserts that the website "za" is a referral program and not a site where the general public has direct access to shop for goods and services. Respondent argues that because the name was available at the time it was registered he, in fairness, should be allowed to keep the name because AMAZON.COM could have registered all imaginable combinations relating to its name.
6. Discussion and Findings
The panel is guided by paragraph 4(a) of the Policy, which directs that the Complainant must prove each of the following:
i. that the domain name registered by Respondent is identical or confusingly similar to a trademark in which the Complainant has rights; and
ii. that the Respondent has no rights or legitimate interests in respect of the domain name; and
iii. that the domain name has been registered and is being used in bad faith.
To prevail, Complainant must establish each of the foregoing elements, which are separately addressed below.
A. Identical or Confusingly Similar
Complainant has provided strong support for its assertion of rights in the service mark AMAZON.COM. It has made substantial investments in advertising, documented extensive use and obtained trademark registrations from around the world. Complainant has shown that it uses AMAZON.COM in connection with on-line retailing, first of books, and more recently of other products including computers electronics, CDs and toys.
The "za" site is an affiliate website listing the Respondent as "your SFI referrer," apparently affiliated with Six Figure Marketing (SFI). Below Respondent�s name is listed both "cool free stuff" and "other great stuff," available from the associated links to other web sites. The links include sites offering magazine subscriptions, long distance services, credit card accounts, and books and tapes regarding home business. The Respondent is listed as the sales rep or referrer for each site, and, as such, he apparently is entitled to some credit or remuneration for purchases made under the affiliate program.
The AMAZON.COM trademark is identical to the domain name in dispute, , except for the additional "z" which has been added at the beginning of the domain name. Unlike most other situations, where the trademark is used preceding but not including the Top Level Domain (TLD) ".com," AMAZON.COM includes the TLD as part of the trademark. Not only are the names virtually visually identical, but they sound alike. Reference to the domain name will therefore readily call to mind AMAZON.COM. The panel finds that is identical or confusingly similar to the trademark AMAZON.COM in which the Complainant has rights.
B. Rights or Legitimate Interests
Respondent does not directly assert any of the examples of a legitimate interest listed in paragraph 4(c) of the Policy. He claims that "zamazon" has been "coined" out of his last name, Ikhizamah. While it is true that four letters, "zama," are common to both names, Respondent does not assert that he has been commonly known by the name "zama" or "zamazon." The panel finds that Respondent does not have legitimate rights to or interests in the domain name . Although not necessary for this finding, the panel considers it implausible that someone such as Respondent who participates in an affiliate program promoting retail sales on the Internet would not have been aware of AMAZON.COM, perhaps the best known Internet retailer.
C. Registered and Used in Bad Faith
Respondent registered the domain name in April 2002. He apparently did so for the purpose of using it in connection with his participation in an affiliate program with SFI. Under that program, Respondent apparently receives credit or some remuneration for every sale that is made by a user who first visits and then uses one of the links to visit a site and make a purchase. Respondent�s name is listed on these down links as the referrer or sales rep. It is apparent that Respondent has an economic interest in attracting consumers to the website, and will benefit if they make purchases on the linked sites. Based on the information provided the panel finds it is a reasonable inference to assume that Respondent was at least motivated in part in choosing the domain name by the prospect of attracting consumers who mistype , thereby satisfying the required finding of bad faith registration and use.
Respondent�s bald assertion that the foregoing is merely a coincidence is not supported by any factual showing. As noted, it is not plausible to believe that a domain name registrant involved in an affiliate marketing program would be completely unaware of the Internet business, A in April 2002. Additionally, the Panel questions whether it is also a mere coincidence that the letter "z" is directly below the letter "a" on a standard keyboard and both are typically pushed by the left pinky finger of the typist, which may cause an Internet consumer to mistakenly type when intending to type . But the Panel need not decide whether an inference of "typosquatting" may be justified here. The inference of bad faith registration and use is amply supported by an email that Respondent wrote to Complainant after this proceeding was filed. Respondent suggested that Complainant could purchase the domain name for "the paltry sum of $25,000." Offering to sell the domain name for a price above its cost is evidence of bad faith.
7. Decision
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to the Complainant.
Roderick M. Thompson
Presiding Panelist
M. Scott Donahey
Panelist
Timothy D. Casey
Panelist
Dated: March 17, 2003
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