Complainant is A Inc., Amazon Technologies, Inc. and Amazon Europe Holding Technologies SCS of Seattle, Washington, United States of America, represented by The GigaLaw Firm, United States of America.
Respondent is “U S / A”1, Inc. of Seattle, Washington, 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 response confirming that Respondent is listed as the registrant and providing the contact details.
The Center verified that 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 Respondent of the Complaint, and the proceedings commenced on January 9, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was January 29, 2014. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on January 30, 2014.
The Center appointed Frederick M. Abbott 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. 4. Factual Background
Complainant is comprised of three related corporate entities: A Inc., Amazon Technologies, Inc. and Amazon Europe Holding Technologies SCS, together holding rights in the trademark and service mark (hereinafter “trademark”) relevant to this proceeding. The aforesaid corporate entities are referred to collectively as “Complainant”.
Complainant has registered the word trademark CLOUDFRONT on the Principal Register of the United States Patent and Trademark Office (USPTO), registration number 4214198, registration dated September 25, 2012, in international classes 9, 38 and 42, covering, inter alia, computer software for storage and delivery of digital content, electronic delivery of digital content, and hosting of third-party web content and applications. Complainant has additional registrations for the CLOUDFRONT trademark in the European Union (a CTM registered at the OHIM), Brazil, China, Hong Kong, Japan and Singapore.
Through its Amazon Web Services (AWS), Complainant in November 2008 launched Amazon CLOUDFRONT, which it describes as “a self-service, pay-as-you-go web service for content delivery. With CloudFront, developers and businesses can distribute content through a worldwide network of edge locations that provide low latency and high data transfer speeds. CloudFront works seamlessly with other AWS services such as Amazon S3, and like all AWS services, is self-service with no up-front commitments, no long-term contracts and pay-as-you-go pricing.” It has since introduced enhancements to CLOUDFRONT goods and services. Internet users may access CLOUDFRONT through Complainant’s registered domain name at , which redirects users to Complainant’s CLOUDFRONT portal at “aws.a/cloudfront/”.
Complainant is the owner of the AMAZON.COM trademark that is well known in the United States and worldwide.
According to the Registrar’s verification, Respondent “U S / A, Inc.” is registrant of the disputed domain name. According to that verification, the record of registration for the disputed domain name was created on October 31, 2013, and the disputed domain name has been registered to Respondent from that date.
There is no evidence that Respondent is in any way associated with Complainant. Complainant expressly states that Respondent is not in any way associated with Complainant.
There is no evidence that the disputed domain name has been associated with an active website.
The registration agreement in effect between Respondent and the Registrar subjects Respondent to dispute settlement under the Policy. The Policy requires that domain name registrants submit to a mandatory administrative proceeding conducted by an approved dispute resolution service provider, of which the Center is one, regarding allegations of abusive domain name registration and use. (Policy, paragraph 4(a)). 5. Parties’ Contentions A. Complainant
Complainant asserts rights in the trademark CLOUDFRONT and that the disputed domain name is confusingly similar to that trademark. Complainant alleges that Respondent by substituting the letter “i” for the letter “l” in the disputed domain name has engaged in the practice of typosquatting.
Complainant contends that Respondent lacks rights or legitimate interests in the disputed domain name because: (1) Complainant has never in any way authorized Respondent to use its trademark in the disputed domain name; (2) Respondent has not been commonly known by the disputed domain name, and has not acquired any trademark or service mark rights in the disputed domain name; (3) Respondent has not used or made preparations to use the disputed domain name in connection with a bona fide offering of goods or services, and; (4) mere registration of the disputed domain name (i.e. passive holding) does not establish rights or legitimate interests.
Complainant argues that Respondent registered and is using the disputed domain name in bad faith because: (1) the apparent lack of active use of the disputed domain name does not prevent a finding of bad faith; (2) Respondent has concealed its identity by registering the disputed domain name under Complainant’s own name, and has failed to correct the registration details; (3) Respondent is concealing its true identity by operating under a name that does not identify Respondent; (4) the CLOUDMARK trademark has a strong reputation and is widely known, given that it is a fanciful mark used by one of America’s largest corporations for more than five years; (5) there is no evidence of actual or contemplated good faith use of the disputed domain name by Respondent; (6) in light of the foregoing, it is not possible to posit a legitimate use by Respondent of the disputed domain name, and; (7) the disputed domain name was registered after Complainant registered the CLOUDFRONT trademark, and Respondent’s actions suggest “opportunistic bad faith” to take advantage of Complainant’s trademark rights.
Complainant requests the Panel to direct the Registrar to transfer the disputed domain name to Complainant. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
The Policy is addressed to resolving disputes concerning allegations of abusive domain name registration and use. The Panel will confine itself to making determinations necessary to resolve this administrative proceeding.
The Center formally notified the Complaint to Respondent in the manner prescribed by the Rules. The tracking record of the express courier used by the Center indicates that the Complaint was delivered and accepted at the address of Respondent listed in the record of registration. The Panel is satisfied that Respondent was afforded a reasonable opportunity to respond to the Complaint in this proceeding.
Paragraph 4(a) of the Policy sets forth three elements that must be established by a complainant to merit a finding that a respondent has engaged in abusive domain name registration and use and to obtain relief. These elements are that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which complainant has rights; and
(ii) 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.
Each of the aforesaid three elements must be proved by a complainant to warrant relief. A. Identical or Confusingly Similar
Complainant has provided substantial evidence of rights in the trademark CLOUDFRONT as evidenced by registration, inter alia, at the USPTO, and as supported by use in commerce in the United States and elsewhere (see Factual Background, supra). Respondent has not contested Complainant’s assertion of trademark rights. The Panel determines that Complainant has rights in the trademark CLOUDFRONT in the United States, where Respondent claims to reside.2
The disputed domain name substitutes the letter “i” for the letter “l” as it otherwise appears in Complainant’s CLOUDFRONT trademark. The term “cioudfront” used in the disputed domain name has no meaning in the English language, and does not call to mind a meaning in the English Language. It appears to be an intentional typographical misspelling of the term CLOUDFRONT. While, as Complainant contends, CLOUDFRONT might be a coined term in respect to its trademark usage, its components “cloud” and “front” have English language meanings that in combination are suggestive of goods or services provided in a digital environment (i.e., “cloud” as used in the context of “cloud computing”, and “front” as used in the sense of a doorway or portal). Respondent’s typographical misspelling of CLOUDFRONT is nearly identical from a visual standpoint to Complainant’s trademark. Internet users attempting to enter Complainant’s trademark term in a browser address line would be unlikely to notice their own typographical mistake. They would be inadvertently directed to a website addressed by the disputed domain name. In this sense, the disputed domain name is confusingly similar to Complainant’s trademark.
The Panel determines that Complainant has rights in the trademark CLOUDFRONT and that the disputed domain name is confusingly similar to that trademark for purposes of the Policy. B. Rights or Legitimate Interests
The second element of a claim of abusive domain name registration and use is that Respondent has no rights or legitimate interests in respect of the domain name (Policy, paragraph 4(a)(ii)). The Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests:
“Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
(Policy, paragraph 4(c))
As set out in Section 5 above, Complainant argues that Respondent lacks rights or legitimate interests in the disputed domain name. The Panel determines that Complainant has made a prima facie showing that Respondent lacks rights or legitimate interests in the disputed domain name.
Respondent has not responded to the Complaint, and on the basis of the evidence before it there is no manifest basis for the Panel to find that Respondent has rights or legitimate interests in the disputed domain name. Respondent has not rebutted Complainant’s prima facie showing.
The Panel determines that Complainant has established that Respondent lacks rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a non-exhaustive list of the types of evidence that may establish bad faith registration and use of the disputed domain name.3
In the instant proceeding, Respondent registered the disputed domain name falsely using “A”, Complainant’s well-known trademark name as well as Complainant’s location, for its identity. Respondent deliberately adopted the identity of Complainant. Because of its misuse of Complainant’s identity, the Panel presumes that Respondent acted with a bad faith intention, such as to escape the attention of Complainant, the Registrar or some other party that might object to its registration of the disputed domain name. Respondent has not provided any justification for its use of Complainant’s identity in its registration of the disputed domain name. The Panel determines that Respondent registered the disputed domain name in bad faith.
Although Respondent has not yet made affirmative use of the disputed domain name in association with an active website, Respondent’s misappropriation of Complainant’s identity in registration of the disputed domain name provides a sufficient basis for the Panel to determine that Respondent is using the disputed domain name in bad faith within the meaning of the Policy. The use by Respondent of Complainant’s identity establishes a presumption that Respondent is acting with the intention to take unfair advantage of Complainant’s rights in its CLOUDFRONT trademark. There is a direct link between Complainant as A and Complainant’s own use of its CLOUDFRONT trademark. By registering the disputed domain name using the false identity “U S / A, Inc.”, Respondent has attempted to establish a near-identical but false association. Although Respondent’s specific future plans are difficult to foresee, the Panel is satisfied that Respondent is acting with an illegitimate purpose.
The Panel determines that Respondent registered and is using the disputed domain name in bad faith within the meaning of paragraph 4(b) of the Policy. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to Complainant.
Frederick M. Abbott
Sole Panelist
Date: March 2, 2014
1 As further explained below, the disputed domain name in this case appears to have been registered by Respondent falsely using “A”, Complainant’s well-known trademark name as well as Complainant’s location, for its identity.
2 For purposes of this proceeding, it is unnecessary to make a determination regarding trademark rights in other countries.
3 Paragraph 4(b) of the Policy establishes the required demonstration of bad faith, providing:
“b. Evidence of Registration and Use in Bad Faith. For the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that you have registered or you have 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 that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered 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 you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site 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 your web site or location or of a product or service on your web site or location.”
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