WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
A, Inc. v. Lorna Kang a/k/a Yong Li a/k/a Mahmoud�Nadim a/k/a�The�Data�in B’s WHOIS Database is p a/k/a�Amjad�Kausar
Case No.�D2005-0635
1. The Parties
The Complainant is A,�Inc. of Seattle, Washington, the United�States�of�America, represented by Klarquist�Sparkman,�LLP, of the United�States�of�America.
The Respondents are Lorna�Kang a/k/a Yong Li a/k/a Mahmoud�Nadim a/k/a�The�Data in B’s WHOIS Database is p a/k/a�Amjad�Kausar of, respectively, Perak, Malaysia; Beijing, China; Dhaka, Bangladesh; Moscow, Russia; and Karachi, Pakistan.
2. The Domain Names and Registrars
The disputed domain names:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
are registered with the following registrars (in the same order as above):
1. iH Inc. d/b/a DotR
2. eNom
3. eNom
4. eNom
5. iH Inc. d/b/a DotR
6. eNom
7. eNom
8. eNom
9. eNom
10. iH Inc. d/b/a DotR.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the�“Center”) on June�16,�2005. On June�20,�2005, the Center transmitted by email to iH Inc. d/b/a DotR and eNom a request for registrar verification in connection with the domain names at issue. On June�21,�2005, eNom transmitted by email to the Center its verification response confirming that the Respondents are listed as the registrants of the domain names , , , , , and , and providing the contact details for the administrative, billing, and technical contact. On June�22,�2005, iH Inc. d/b/a DotR transmitted by email to the Center its verification response confirming that the Respondents are listed as the registrants of the domain names , and , and providing the contact details for the administrative, billing, and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on July�7,�2005. The Center verified that the Complaint together with the amendment to 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 Respondents of the Complaint, and the proceedings commenced on July�14,�2005. In accordance with the Rules, paragraph�5(a), the due date for the Response was August�3,�2005. The Respondents did not submit any response. Accordingly, the Center notified the Respondents’ default on August�4,�2005.
The Center appointed Nasser�A.�Khasawneh, Louis�E.�Condon and Syed Naqiz Shahabuddin as panelists in this matter on August�23,�2005. 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.
4. Factual Background
The Complainant is one of the world’s leading online booksellers and Internet retailers. The Complainant’s brand and trademark are recognized globally, and millions of consumers have purchased goods through its “www.a” website. The�Complainant’s AMAZON.COM trademark and other AMAZON trademarks have been registered in over 40 countries in the course of the last 10 years, including the European�Union, Australia, Canada, the People’s Republic of China, Indonesia, Israel, Japan, Kenya, Malaysia, Mexico, Peru, Saudi Arabia, Singapore, South Korea, Sweden, Switzerland, Taiwan, and Turkey.
The disputed domain names were registered by the various Respondents at different points in time since January�23,�2000.
5. Parties’ Contentions
A. The Complainant
The Complainant contends that:
1. The true Respondent in this Complaint is a single domain name holder operating under the aliases of the above-named Respondents. According to the Complainant, the evidence shows that the true domain name holder is the “recidivist cybersquatter” Alex�Vorot. Various previous UDRP panels have held that some of the above Respondents were in fact Alex�Vorot, and all the disputed domain names redirect to the website “”, which has been found to be one of Alex�Vorot’s websites.
2. The disputed domain names are based on and are confusingly similar to the Complainant’s famous trade name and AMAZON trademarks. The Complainant argues that the domain name merely substitutes one letter of the Complainant’s AMAZON.COM trademark with another letter located very near the correct letter on the standard English language keyboard. Seven of the remaining nine domain names are obvious misspellings of the Complainant’s trademark, resulting from the addition or substitution of just one or two letters in the Complainant’s famous trademark to form domain names that sound and look highly similar to the Complainant’s trademark (, , , , , , and ). Finally, according to the Complainant, the last two disputed domain names ( and ) are omission typos that are also confusingly similar.
3. The Respondents have no rights or legitimate interests in the disputed domain names. The Complainant supports this contention with various arguments: Each of the disputed domain names re-directs to “” (this indicates use in order to re-direct traffic to other sites for the purpose of generating profits), the Respondent is trying to conceal its identity (according to the WHOIS records), and most consumers would associate the disputed domain names with the Complainant.
4. The disputed domain names were registered and are being used in bad faith. The�Complainant supports this contention with various arguments: The Respondent is attempting to ride the coattails of the Complainant’s famous trademarks (as�evidenced by the fact that the earliest registration date for any of the disputed domain names is January�23,�2000, a date nearly five years after the first application by the Complainant to register its AMAZON.COM mark), the “” site directed users to the site of the Complainant and its competitors, the use of “obvious” typographical errors in the disputed domain names, and the Respondent’s pattern of conduct in “cybersquatting” against the Complainant’s and other companies’ marks.
B. The Respondents
The Respondents did not reply to the Complainant’s contentions.
6. Discussion and Findings
Before moving to the discussion of the three key elements of the Policy, the Panel would like to address the issue of the identity of the Respondents. After carefully reviewing the overall body of evidence, the Panel approves of the Complainant’s position that this action can be brought against the several different Respondents since the true Respondent seems to be a single domain name holder operating under a variety of aliases.
A. Identical or Confusingly Similar
The Panel concludes that all 10 disputed domain names are confusingly similar to the famous AMAZON.COM trademark registered and used by the Complainant for the past 10 years. The Panel views the record of trademark registrations presented by the Complainant, and is satisfied that the Complainant has trademark rights in the word AMAZON.COM in various countries all over the world. The Panel also agrees with the assessment of the Complainant that AMAZON.COM is a well-known mark representing an online retail/book-selling business that is a global leader in its field.
The Panel concludes that the 10 disputed domain names are confusingly similar to the Complainant’s trademark for a number of reasons, including:
- The disputed domain names constitute, to varying degrees, misspellings or typographical errors of the Complainant’s registered AMAZON.COM trademark;
- In the case of the disputed domain name , the only difference with the Complainant’s trademark lies in the substitution of the letter “z” with the letter “d”. Such a difference does not lead to any meaningful distinction, and the confusing similarity is beyond doubt;
- In the case of seven of the remaining disputed domain names (, , , , , , and ), the Panel concurs with the Complainant that the only difference lies in the addition or substitution of just one or two letters to the Complainant’s mark in order to “form domain names that sound and look highly similar to the Complainant’s trademark”. The Panel concluded that these marks are “obvious misspellings” of the AMAZON.COM mark;
- As for the last two remaining disputed domain names, and , the Panel also views these as obvious misspellings/typographical errors of the Complainant’s trademarks, with the use of the prefixes “www” and “ww” as a ploy to attract Internet users who misspell the Complainant’s domain name when trying to access its site. Some Internet users may neglect to write the period between the “www” prefix when they try to access the Complainant’s website, or they may only write “ww” in haste, and thus be diverted to the Respondents’ site.
In reaching this conclusion, the Panel is guided by various UDRP decisions that support the underlying rationale adopted by the Panel. For example, the Panel refers to Harrah’s Las Vegas, Inc. v. Yong Li, National Arbitration Forum Case No.�FA137092 (January�16,�2003), in which it was held that “an obvious misspelling of a famous and distinct mark fails to create a domain name capable of overcoming a claim of confusing similarity under Policy � 4(a)(i).” Also, the Panel refers to Shaklee Corporation v. Moeltgen Media, National Arbitration Forum Case No.�FA 142319 (February�28,�2003), in which it was stated that “the addition of the ‘www’ prefix to the Complainant’s registered mark does not create a domain name that is distinct from the mark for purposes of [the] Policy”. The WIPO UDRP decision Expedia, Inc. v. Seocho, WIPO Case No.�D2002-0288 (June�11,�2002) is also noted for finding confusingly similar to the mark EXPEDIA.COM. The Panel held in that case that the risk “of mistyping is relevant in relation to Domain Names, which are expected to be typed, often by inexpert typists, in the same way that mishearing is relevant in relation to names which are expected to be used orally”.
B. Rights or Legitimate Interests
There is nothing in the facts and circumstances that point to the Respondents having a legitimate right or interest in the disputed domain names. One is guided in this regard by paragraph�4(c) of the Policy which lists three circumstances, each of which could prove the existence of rights or legitimate interests. None of these circumstances exist in this case. There is no evidence to suggest that the Respondents are known by, or otherwise trade using, the domain names. There is also nothing to suggest that the Respondents are using the disputed domain names in connection with a bona fide offering of goods or services or that the Respondents are making legitimate noncommercial or fair use of the domain names. In fact, the record establishes, beyond reasonable doubt, that the opposite of each of these circumstances applies in this case.
According to the Complainant, the disputed domain names re-directed visitors to the “” site. Such use of a disputed domain name has already been deemed not to constitute a legitimate right or interest in a previous UDRP decision, Yahoo! Inc. and HotJ, Ltd. v. Alex�Vorot a/k/a Arzra Khan, a/k/a Registrate Co., a/k/a NA, a/k/a Andrey Michailov, a/k/a Amjad Kauser, a/k/a Lorna Kang, a/k/a Venta, a/k/a Dotsan, a/k/a Yong Li, a/k/a Mahmoud Nadim, National Arbitration Forum Case No.�FA159547 (July�16,�2003). In that case, in which some of the Respondents were the same as in this case, the Panel found that the re-direction of the domain names to “” was intended to direct traffic to competing sites offering pop-up advertisements and that this was “neither an example of a bona fide offering of goods or services nor a legitimate non-commercial or fair use of the domain name”.
Therefore, for as long as the disputed domain names were re-directing Internet users to “”, the Respondents were held not to have any legitimate right or interest under paragraph�4(c) of the Policy. However, when this Panel tried to access the sites of the disputed domain names, something different happened. In the case of , the Panel was directed to a site displaying links to various commercial sites offering a variety of goods. As in the case of “”, such re-direction to paid links does not constitute legitimate use of the disputed domain name. As for the other nine disputed domain names, the Panel was re-directed to the site of the Complainant. It is not clear why this change happened. It may well have been a reaction to the lodging of the Complaint in this proceeding. In any case, such use of the disputed domain names does not in any way establish a legitimate right or interest of the Respondents. In fact, this re-direction to the Complainant’s site may serve to re-emphasize the need to transfer these disputed domain names to the Complainant.
Consequently, the Panel finds for the Complainant on the second element of the Policy.
C. Registered and Used in Bad Faith
Upon carefully weighing all the available evidence, the Panel has reached the conclusion that the disputed domain names were registered and are being used in bad faith. A number of factors and reasons led to this conclusion:
- There is an indisputable pattern of “cybersquatting” by the Respondents. There is a history of registration and use of domain names targeting the Complainant’s, and other, trademarks. This fact is illustrated by several previous UDRP decisions against the Respondents, including Wells Fargo & Company v. Lorna�Kang, National Arbitration Forum Case No.�FA316400 (October�7,�2004) (transferring ); NCL Corporation Ltd. v. Yong Li, National Arbitration Forum Case No.�FA289327 (August�4,�2004) (transferring�); RE/MAX International, Inc. v. Lorna�Kang, National Arbitration Forum Case No.�FA245984 (April�30,�2004) (transferring and ); Harrah’s Las Vegas, Inc. v. Yong Li, National Arbitration Forum Case No.�FA137092 (January�16,�2003) (transferring );
- There is no doubt that the Respondents had knowledge of the Complainant’s famous mark. Previously, as shown by the Complainant, the link to which Internet users were re-directed, “”, ultimately led them to the site of the Complainant and competing sites. Furthermore, the level of fame of the Complainant’s mark makes it highly unlikely that the Respondents’ lacked knowledge of the Complainant’s mark. At present, as this Panel found out, most of the disputed domain names actually refer to the site of the Complainant. This establishes beyond doubt the Respondents’ knowledge of the Complainant’s trademarks;
- The evidence indicates that the Respondents have sought to mask the true identity of the registrant of the domain names by using aliases that resolve to a person known as Alex�Vorot (Alex�Vorot has been embroiled in various cybersquatting cases in the past);
- The Respondents’ registration of obvious misspellings and typographical errors of the Complainant’s trademark is also indicative of bad faith. As held by the Panel in A, Inc. v. Victor Korotkov, WIPO Case No.�D2002-0516 (August�13,�2002), such “typo ploys” demonstrate bad faith;
- The Respondents’ failure to respond to the Complaint in this proceeding was also taken into account. While failure to respond is not in any way conclusive proof of bad faith, the Panel felt that the failure to respond, when considered in light of all of the above factors, is indicative of the Respondents’ bad faith.
Consequently, the Panel finds that the third test of the Policy is met, and the disputed domain names were registered and used in 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 names:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
be transferred to the Complainant. Nasser A. Khasawneh
Presiding Panelist Louis E. Condon
Panelist Syed Naqiz Shahabuddin
Panelist
Dated: September�7,�2005
Full & Egal Universal Law Academy