The Complainant is A Inc., Amazon Technologies, Inc., Amazon Europe Holding Technologies SCS of Seattle, Washington, United States of America, represented by The GigaLaw Firm, LLC, Atlanta, Georgia, United States of America.
The Respondent is Li tianyi of Beijing, China / Registration Private, Domains By Proxy, LLC, DomainsByP, Scottsdale, Arizona, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 13, 2013. On December 13, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 13, 2013, the Registrar transmitted by email to the Center its verification disclosing registrant and contact information for the disputed domain name, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 20, 2013 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on December 23, 2013.
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” or “UDRP”), 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 23, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was January 12, 2014. No formal Response was filed with the Center.
The Center appointed Christian Schalk as the sole panelist in this matter on February 21, 2014. The Panel finds that it was properly constituted. 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.
The Panel has reviewed the record and confirms the Complaint’s compliance with the formal requirements.
On December 20, 2013 a brief email was received from the Respondent which the Center acknowledged receipt of the same day. The Respondent wrote:
“Can not read your mail.
I do not know what people on this domain name dispute.
What are their reasons?
This domain name does not infringe any equity, Controversial person is vexatious.”
Because of the fact that the Respondent denies any infringements in third parties’ rights at the end of its message, the Panel believes that the Respondent must have been sufficiently aware that legal proceeding have been initiated against him and that legal advice would be necessary in case the Respondent would be convinced on its legitimate rights and interest in the disputed domain name. Furthermore, the Respondent is located in China and in the United States of America (“U.S.”) and therefore, there is sufficient evidence to believe that the Respondent could read and understand the Complaint in a manner that allows to take the appropriate steps it deems necessary to defend its rights, if any. The Panel finds that the Respondent had actual Notice of the Proceeding and the Complaint was furthermore properly notified to the Respondent in accordance with paragraph 2(a) of the Rules.
The language of the proceedings is English. 4. Factual Background
The Complainants belong to the Amazon group of companies. Two of them, Amazon Technologies, Inc. and Amazon Europe Holding Technologies SCS, are affiliates of and IP holding companies for the third Complainant, A, Inc., which is the mother company.
The Complainant A, Inc. was incorporated in 1994 and started its online services in July 1995. A ranks among the most well-known companies and brands of the world. It is ranked as number 49 on the 2013 Fortune 500 list of America’s largest corporations and as number 19 of Interbrand’s list of “Best Global Brands 2013”.
In 2006, the Complainant’s Amazon Web Service (AWS) began the marketing of cloud computer services under the term AWS. AWS stands for a low cost IT infrastructure platform in the cloud that powers hundreds of thousands of enterprise, government and startup customers businesses in 190 countries around the world. In this context, AWS offers over 30 different services, including Amazon Elastic Compute Cloud (Amazon EC2), Amazon Simple Storage Service (Amazon S3) and Amazon Relational Database Service (Amazon RDS).
AWS operates a website for its services at “www.aws.a”. It has received a substantive coverage in the press and in the media. A Google search report presented before the Panel reveals links for the Complainant as one of the top results.
The Complainant’s IP holding companies own among others the following trademarks:
- U.S. trademark registration No. 3,576,161 for AWS, first use in commerce on July 31, 2002, covering goods and services in Int. Class 42;
- Community Trademark registration No. 6,021,547 for AWS, with priority date of June 20, 2007, covering goods and services in Int. Classes 9, 35, 36, 38, 39 and 42.
The Complainant is the owner of many domain names, including the domain name .
The Respondent registered the disputed domain name on October 25, 2013. The disputed domain name was not linked with an active website, however currently, the following comment is made on the site:
“This domain belongs to us, is indisputable.
Any person or organization tried to bullying the weak are shameful nasty act.” 5. Parties’ Contentions A. Complainant
The Complainant alleges that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. The Complainant explains in this context that the disputed domain name contains the Complainant’s AWS trademark in its entirety plus the generic acronym “CDN” which stands for “content delivery network” or “content distribution network”. The Complainant refers in this context to entries in Wikipedia, the website “A” as well as to a Google search which produces numerous results for sites related to “content delivery network” including the Complainant’s own website. Therefore, the Complainant is convinced that the addition of generic words to trademarks is not sufficient to escape the finding of similarity and does not change the overall impression of the designations as being connected to the Complainant. The Complainant cites Wikimedia Foundation Inc. v. coments, Nan Jiang,WIPO Case No. D2009-1699 and RCN Corporation, RCN Telecom Services, Inc. v. RCN Networks, LLC,WIPO Case No. D2006-0927 in order to supports its arguments.
The Complainant contends further that the addition of certain words, like “CDN”, could exacerbate the confusing similarity between the Complainant’s trademark and the disputed domain name and could increase the risk of confusion between the disputed domain name and the trademark where such word is associated with the trademark. In this context, the Complainant cites Costco Wholesale Corporation and Costco Wholesale Membership, Inc. v. Kenneth Terrill,WIPO Case No. D2010-2124 and Gateway Inc. v. Domaincar,WIPO Case No. D2006-0604.
The Complainant alleges also that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant asserts that the Respondent has neither received a license to register or use the disputed domain name nor has the Complainant’s AWS trademark been assigned, granted or sold to the Respondent by the Complainant. The Complainant argues further that the Respondent is also not commonly known under the disputed domain name. In order to support its arguments, the Complainant cites Sic Continents Hotels, Inc. v. IQ Mangement Corporation,WIPO Case No. D2004-0272; Six Continents Hotels, Inc. v. Patrick Ory,WIPO Case No. D2003-0098 and Mariott International, Inc. v. Thomas, Burstein and Miller,WIPO Case No. D2000-0610. The Complainant reports in this context, that according to the WhoIs record of the disputed domain name, its registrant is “Registration Private / Domains By Proxy, LLC and not “AWS”, “AWSCDN” or anything remotely similar to the disputed domain name or the “AWS” trademark.
The Complainant believes also that the Respondent has never used, or made any preparations to use the disputed domain name in connection with bona fide offering of goods or services since the Respondent is not using the disputed domain name in connection with an active website or in connection with any legitimate goods or services. It is the Complainant’s opinion that such passive holding of the disputed domain name cannot create any rights and legitimate interests. In this context, the Complainant cites Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003 and Compagnie Générale des Etablissments Michelin v. Ozan Ertekin, Necati Ergin, Zeynep Elif,WIPO Case No. D2012-2482.
Furthermore, the Complainant alleges that the disputed domain name was registered and is being used in bad faith.
The Complainant argues that the AWS trademark has a strong reputation and is widely known. The Complainant reports that AWS is a fanciful mark that has been used by the Complainant for more than seven years and is protected by trademark registrations in the U.S. and in the EU. The Complainant explains in this context that a Google search for “AWS” identified the Complainant’s website as a top result which shows the strong reputation and notoriety of the AWS trademark. In addition, the Complainant’s services under the “AWS” trademark have received a wide spread media recognition. The Complainant cites here Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003, to support its arguments.
The Complainant asserts also that already a simple search in an online trademark register or in the Google search engine would have informed the Respondent on the existence of the Complainant’s trademark rights in AWS. The Complainant believes therefore, that even if the Respondent had not actually been aware of the Complainant’s rights, a small effort on its part would have revealed those rights. The Complainant cites in this context NBC Universal Media, LLC v. Flying Stingrays Ltd, Jim Macallum,WIPO Case No. D2012-1568 where the Panel found that if the Respondent has not made this effort, that this implies that the Respondent has been willfully blind to the Complainant’s rights.
The Complainant reports further, that given the Respondent’s use of a proxy service that replaces its own name with another’s identity in the WhoIs record of the disputed domain name, the Respondent has taken active steps, as it has been stated by the panel in Telstra Corporation Limited v. Nuclear Marshmallows, supra, to conceal its true identity by operating under a name that is not a registered business name.
The Complainant contends also that another evidence of bad faith is that the Respondent registered the disputed domain name which is identical to the Complainant’s own domain name . The only reason for this was, to benefit from the Complainant’s trademark.
Finally, the Complainant asserts that because the disputed domain name is so obviously connected with the Complainant, the Respondent’s action suggest opportunistic bad faith in violation of the Policy. The Complainant cites Research In Motion Limited v. Dustin Picow,WIPO Case No. D2001-0492 and Telstra Corporation Limited v. Nuclear Marshmallows, supra in order to underline its arguments. B. Respondent
In accordance with the material brought before the Panel, the Respondent made, apart from the email of December 20, 2013, the following statement on the website at the disputed domain name:
“This domain belongs to us, is indisputable.
Any person organization tried to bullying the weak are shameful nasty act.” 6. Discussion and Findings
The Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law it deems applicable (paragraph 15(a) of the Rules). Pursuant to paragraph 4(a) of the Policy, the domain name can be transferred only where the Complainant has proven each of the following three elements:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Panel finds that the Complainant has established trademark rights in the term “AWS”. The disputed domain name is not identical to the Complainant’s trademark. However, the Panel finds that the domain name is confusingly similar to the Complainant’s trademark. In accordance with many decisions rendered under the Policy, the addition of descriptive terms or numbers to a trademark is generally not a distinguishing feature (see Bellsouth Intellectual Property Corporation v. Freeworld and/or Luis,WIPO Case No. D2000-1807; Bellsouth Intellectual Property Corporation v. Henry Chan,WIPO Case No. D2004-0550; Canon U.S.A. Inc., Astro Business Solutions, Inc. and Canon Information Systems, Inc. v. Richard Sims,WIPO Case No. D2000-0819; Aventis, Aventis Pharma SA. v. John Smith,WIPO Case No. D2004-0565; Aventis, Aventis Pharma SA. v. John Smith,WIPO Case No. D2004-0624; Toyota France and Toyota Motor Corporation v. Computer-Brain,WIPO Case No. D2002-0002 and Wikimedia Foundation Inc. v. commens, Nan Jiang,WIPO Case No. D2009-1699).
In this case, the term “CDN” has no distinctive character. In accordance with results of searches in the search engine Google, in Wikipedia and on the “A” – website which have been brought before the Panel as well as the Panel’s own Internet searches, the term “CDN” is an acronym for “content delivery network” or “content distribution network”. These networks stand for some aspects of the server- and IT technology, which the Complainant uses for at least some of its services offered under its AWS - trademark. Therefore, the only distinctive element of the disputed domain name consists of the term “AWS”, which is identical to the Complainant’s trademark.
In addition, the “.net” generic Top-Level Domain suffix in the disputed domain name does not affect the determination that the disputed domain name is confusingly similar with AWS in which the Complainant has trademark rights (see also Compagnie Générale des Etablissements Michelin v. Trending,WIPO Case No. D2010-0484; Köstrizer Schwarzbierbrauerei v. Macros-Telekom Corp.,WIPO Case No. D2001-0936; Laboratoire Pharmafarm (SAS) v. M. Sivaramakrishan,WIPO Case No. D2001-0615 and cases cited therein).
For all these reasons, the Panel finds that the Complainant has fulfilled the first element under paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Based on the submissions and materials filed in this case, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name.
The Respondent has not provided any evidence of circumstances specified in paragraph 4(c) of the Policy or of any other circumstances giving rise to a right to or legitimate interest in the disputed domain name. Especially, the Panel finds no evidence that the Respondent is commonly known by the disputed domain name. The Respondent is neither affiliated with the Complainant nor has a license to use its trademark.
Given the Complainant’s overall notoriety, its activities in field of cloud computing, that already a simple search for the term “AWS” in a common online search engine would have revealed the Complainant’s services under the trademark AWS and that the acronym “CDN” stands for some kind of IT technology to be used in the context of such services, it is unlikely that the Respondent was unaware of the Complainant and its trademark when registering the disputed domain.
The Respondent has also not rebutted the Complainant’s allegations and has not provided the Panel with any explanations of Respondent’s rights or legitimate interests. Furthermore, the term “AWS” appears to be an invented word, which in connection with the acronym “CDN” traders would not legitimately choose unless seeking to create an impression of an association with the Complainant (see also Telstra Corporation Limited v. Nuclear Marshmallows, supra. Therefore, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name, and therefore, the requirement of paragraph 4(a)(ii) of the Policy is met. C. Registered and Used in Bad Faith
The Complainant contends that the Respondent registered and is using the domain name in bad faith in violation of the Policy, paragraph 4(a)(iii). The Policy, paragraph 4(b) sets forth four non-exclusive circumstances, which evidence bad faith registration and use of domain names:
(i) circumstances indicating that the Respondent has registered or has acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to the Complainant who is owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the Respondent has registered the disputed 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 been engaged in a pattern of such conduct; or
(iii) the Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website or location of a product.
According to the materials brought before the Panel, the Panel finds that the disputed domain name has been registered and is being used by the Respondent in bad faith in accordance with paragraph 4(b)(iv) of the Policy.
It is a principle considered under prior UDRP decisions (see, for instance, Carolina Herrera, Ltd. v. Alberto Rincon Garcia,WIPO Case No. D2002-0806; Six Continents Hotels, Inc. v. Seweryn Nowak,WIPO Case No. D2003-0022) and under the Policy (see paragraph 2), that a domain name registrant represents and warrants to the concerned registrar that to its knowledge, the registration of the disputed domain name will not infringe the rights of any third party.
Given the Complainant’s overall notoriety, its activities in the field of cloud computing, that already a simple search for the term “AWS” in a common online search engine would have revealed the Complainant’s services under the trademark “AWS” and that the acronym “CDN” stands for some kind of IT technology to be used in this context, it is unlikely that the Respondent was unaware of the Complainant and its trademark when registering the disputed domain (see, Liseberg AB v. Administration Local Manage Technical,WIPO Case No. D2003-0864). Therefore, the Panel is convinced that the Respondent registered the disputed domain name in bad faith.
The Panel finds further, that the Respondent is also using the disputed domain name in bad faith. It is a well established principle in the UDRP decision practice that inaction such as passive holding of a disputed domain name can under certain circumstances constitute a domain name being used bad faith (see as the leading case Telstra Corporation Limited v. Nuclear Marshmallows, supra).
The Complainant’s name “Amazon” is one of the most famous brands in the world. Having regard to the material brought before the Panel, the Panel finds that the Complainant’s AWS – trademark which stands for “Amazon Web Services”, has a strong reputation in the field of IT, especially for cloud computing services. The Respondent has not provided any evidence whatsoever of any actual or contemplated good faith use by it of the disputed domain name.
Moreover, the Respondent has provided inaccurate contact details when it registered the disputed domain name or failed at least to correct such false contact details. The Center has used the contact details given in the WhoIs information for the disputed domain name and those provided by the Registrar when it tried to contact the Respondent. However, the Written Notice of the Complaint was returned because it could not be delivered and also the courier service provider could not reach the Respondent. It was the same with the fax number which was apparently incorrect. Therefore, the Panel notes that the Respondent is in breach of the registration agreement (and may have given incorrect contact details to frustrate or at least to delay these proceedings see Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003).
Given all facts and circumstances of this case, the Panel finds, that it is not possible to conceive of any plausible actual or contemplated active use of the disputed domain name by the Respondent that would not be illegitimate. Therefore, the disputed domain name was registered and is being used in bad faith. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(a) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Christian Schalk
Sole Panelist
Date: March 3, 2014
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