Complainants are A, Inc. ("Complainant No. 1") and Amazon Technologies, Inc. ("Complainant No. 2") of Seattle, Washington, United States of America ("US") (together "Complainants"), represented by The GigaLaw Firm, Douglas M. Isenberg, Attorney at Law, LLC, US.
Respondent is Domain Admin, C/O ID#10760, Privacy Protection Service INC d/b/a PrivacyP of Nobby Beach, Queensland, Australia / Kumar Jan of Pune, India1. 2. The Domain Name and Registrar
The disputed domain name is registered with D, Inc. (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 1, 2017. On March 1, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 9, 2017, the Registrar transmitted by email to the Center its verification response 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 Complainants on March 10, 2017, providing the registrant and contact information disclosed by the Registrar, and inviting Complainants to submit an amendment to the Complaint. Complainants filed an amendment to the Complaint on March 14, 2017.
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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on March 20, 2017. In accordance with the Rules, paragraph 5, the due date for Response was April 9, 2017. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on April 10, 2017.
The Center appointed Stephanie G. Hartung as the sole panelist in this matter on April 21, 2017. 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
Complainants both belong to the Amazon group of companies, being a worldwide well-known online retailer, incorporated in July 1994 and launched on the World Wide Web in July 1995. Complainants serve consumer customers through numerous retail websites, including "www.a".
Complainants have provided evidence that Complainant No. 1 is the registered owner of numerous trademarks relating to the designation "amazon" including, inter alia:
- Word mark AMAZON, United States Patent and Trademark Office (USPTO), Registration No.: 2657226, Registration Date: December 3, 2002, Status: Active;
- Word mark AMAZON, USPTO, Registration No.: 2857590, Registration Date: June 29, 2004, Status: Active;
- Word mark AMAZON.COM, USPTO, Registration No.: 2078496, Registration Date: July 15, 1997, Status: Active;
- Word mark AMAZON.COM, USPTO, Registration No.: 2559936, Registration Date: April 9, 2002, Status: Active.
Moreover, Complainant No. 2 has evidenced to own the domain name which was first registered on October 31, 1994.
Respondent, located in India, registered the disputed domain name on February 6, 2017. As of the time of the rendering of this Decision, the disputed domain name does not resolve to any content on the Internet. Complainants, however, have provided evidence that, at some point before the filing of this Complaint, the disputed domain name redirected to a website at "www." which appeared to be associated with Complainants, as it contained three unauthorized reproductions of Complainants' so-called Amazon Smile Logo along with the text: "Kindly Register Yourself With Your Updated Bio-Data For The Job Of Delivery Boy With Us / Click Here To Continue".
Complainants request that the disputed domain name be transferred to Complainant No. 2. 5. Parties' Contentions A. Complainant
Complainants contend to serve consumer customers through numerous retail websites, which include their main website at "www.a", where Complainants as well as more than 2 million third-party sellers offer millions of unique, new, refurbished and used items for sale. Complainants have about 331,400 full-time and part-time employees; their recently reported quarterly net sales amounted to USD 43.7 billion. Consequently, Complainants' rank is number 18 on the "Fortune 500" list of America's largest corporations and is number eight on Interbrand's list of "'Best Global Brands 2016".
Complainants submit that the disputed domain name is confusingly similar with Complainants' AMAZON trademark as it incorporates the latter in its entirety with the mere addition of the terms "hr" and "team" which are insufficient to overcome the dominant portion, namely Complainants' AMAZON trademark in the disputed domain name.
Moreover, Complainants assert that Respondent has no rights or legitimate interests with respect to the disputed domain name since (1) Respondent was never authorized by Complainants to register or use the AMAZON trademark in any manner, (2) Respondent has never used, or made preparations to use the disputed domain name in connection with a bona fide offering of goods or services, but rather to resolve to a website that falsely appears to be associated with Complainants and apparently forms part of a so-called "employment scam" (that is soliciting applicants for non-existing jobs at Complainants), and (3) Respondent has never been commonly known by the disputed domain name and has never acquired any trademark or further rights therein.
Finally, Complainants argue that Respondent registered and is using the disputed domain name in bad faith since Respondent conveys the false impression that Internet visitors can apply for jobs with Complainants at the website associated with the disputed domain name which clearly is an intentional attempt to attract, for commercial gain, Internet users to Respondent's website by creating a likelihood of confusion with Complainant's AMAZON trademark as to the source, sponsorship, affiliation or endorsement of Respondent's website. B. Respondent
Respondent did not reply to Complainants' contentions. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, Complainants carry the burden of proving:
(i) That the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainants have rights; and
(ii) That Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) That the disputed domain name has been registered and is being used in bad faith.
Respondent's default in the case at hand does not automatically result in a decision in favor of Complainants, however, paragraph 5(f) of the Rules provides that if Respondent does not submit a response, in the absence of exceptional circumstances, the Panel may decide the dispute solely based upon the Complaint. Further, the Panel may draw such inferences as are appropriate from Respondent's failure to submit a Response.
As a preliminary note, Complainants state that they are related entities and that the rights and roles of each are relevant to this proceeding. The Panel, therefore, has no difficulties to accept two individual complainants to bring this consolidated Complaint against Respondent as this is perfectly in line with the UDRP panels' consensus view on allowing multiple complainants in comparable scenarios (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 4.16). A. Identical or Confusingly Similar
The Panel concludes that the disputed domain name is confusingly similar to the AMAZON trademark in which Complainants have rights.
The disputed domain name incorporates the AMAZON trademark in its entirety. Numerous UDRP panels have recognized that incorporating a trademark in its entirety can be sufficient to establish that the disputed domain name is at least confusingly similar to a registered trademark (see e.g., PepsiCo, Inc. v. PEPSI, SRL (a/k/a P.E.P.S.I.) and EMS Computer Industry (a/k/a EMS),WIPO Case No. D2003-0696). Moreover, it has been held in many UDRP decisions and has become a consensus view among panelists (WIPO Overview 2.0, paragraph 1.9), that the addition of a generic or descriptive term to a trademark in a domain name is normally insufficient, in and of itself, to avoid a finding of confusing similarity under the first element of the UDRP. Accordingly, the addition of the terms "hr" (being a common abbreviation for "human resources") as well as "team" does not dispel the confusing similarity arising from the incorporation of Complainants' AMAZON trademark in the disputed domain name.
Therefore, Complainants have established the first element under the Policy set forth by paragraph 4(a)(i). B. Rights or Legitimate Interests
The Panel is further convinced on the basis of Complainants' undisputed contentions that Respondent has not made use of the disputed domain name in connection with a bona fide offering of goods or services, nor has Respondent been commonly known by the disputed domain name, nor can it be found that Respondent has made a legitimate noncommercial or fair use thereof without intent for commercial gain.
Respondent has not been authorized to use Complainants' AMAZON trademark, either as a domain name or in any other way. Also, there is no reason to believe that Respondent's name somehow corresponds with the disputed domain name and Respondent does not appear to have any trademark rights associated with the name "amazon". Quite to the contrary, Respondent, at some point before filing this Complaint, used the disputed domain name to resolve to a website at "www." that falsely appears to be associated with Complainants by reproducing Complainants' AMAZON Smile Loge and forming part of an employment scam. Such use of the disputed domain name neither qualifies as bona fide within the meaning of paragraph 4(c)(i) of the Policy nor is it noncommercial or fair without intent for commercial gain as set forth by paragraph 4(c)(iii) of the Policy.
Accordingly, Complainants have established a prima facie case that Respondent has no rights or legitimate interests with respect to the disputed domain name. Having done so, the burden of production shifts to Respondent to come forward with appropriate evidence demonstrating such rights or legitimate interests (see WIPO Overview 2.0, paragraph 2.1). Given that Respondent has defaulted, he has not met that burden.
Therefore, the Panel finds that Complainants have also satisfied paragraph 4(a)(ii) and, thus, the second element of the Policy. C. Registered and Used in Bad Faith
The Panel finally holds that the disputed domain name was registered and is being used by Respondent in bad faith.
The use of the disputed domain name, which is confusingly similar to Complainants' AMAZON trademark, to resolve to a website at "www." which – by using Complainants' AMAZON Smile Logo without authorization to do – falsely appears to be associated with Complainants and apparently forms part of an employment scam, is a clear indication that Respondent intentionally attempted to attract, for commercial gain, Internet users to his own website by creating a likelihood of confusion with Complainants' AMAZON trademark as to the source, sponsorship, affiliation or endorsement of Respondent's website. Such circumstances are evidence of registration and use of the disputed domain name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy.
In connection with this finding, it also carries weight in the eyes of the Panel that Respondent not only made use of a WhoIs privacy shield, apparently in an attempt to conceal his true identity, but also provided false WhoIs contact information, since the delivery of the Written Notice of the Complaint sent to Respondent via courier on March 20, 2017, failed due to an apparent invalid postal address. These facts at least throw a light on Respondent's behavior which supports the conclusion of registration and use of the disputed domain name in bad faith.
Taking into consideration the facts and circumstances set out above, the Panel finds that Complainants have also satisfied the third element under the Policy as set forth by paragraph 4(a)(iii). 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 No. 2.
Stephanie G. Hartung
Sole Panelist
Date: May 5, 2017
1 It is evident from the case file that Domain Admin, C/O ID#10760, Privacy Protection Service INC d/b/a PrivacyP is a privacy protection service and that Kumar Jan is the underlying registrant of the disputed domain name. Therefore, unless otherwise indicated, the term "Respondent" is used by the Panel in the case at hand to refer to the latter underlying registrant only.
Full & Egal Universal Law Academy