The Complainant is Amazon Technologies, Inc., United States of America (“United States”), represented by Greenberg Traurig, LLP, United States.
The Respondent is Domain Administrator, See PrivacyGuardian.org, United States / Daniel Radu, Romania.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 10, 2021. On August 10, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 10, 2021, 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 the Complainant on August 12, 2021, 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 amended Complaint on August 24, 2021.
The Center verified that the Complaint together with the amended 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 the Respondent of the Complaint, and the proceedings commenced on August 25, 2021. In accordance with the Rules, paragraph 5, the due date for Response was September 14, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 15, 2021.
The Center appointed Adam Taylor as the sole panelist in this matter on September 27, 2021. 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 BackgroundFor some 15 years, the Complainant has operated a cloud computing platform under the names “Amazon Web Services” and “AWS”. The service, which has millions of customers worldwide and supports much of the content on the Internet, turned over approximately USD 54 billion in the last year.
The Complainant owns many registered trade marks for AWS, including United States trade mark no. 3576161, filed on August 28, 2008, registered on February 17, 2009, in class 42.
The disputed domain name was registered on October 1, 2019.
As of May 26, 2021, the disputed domain name resolved to an inactive website displaying a “404 Not Found” error message.
5. Parties’ Contentions A. ComplainantThe following is a summary of the Complainant’s contentions.
The Complainant promotes the “AWS” brand extensively, including social media and sporting sponsorships. As a result, the mark has become famous.
The disputed domain name is confusingly similar to the Complainant’s famous AWS mark which it entirely incorporates. Furthermore, it follows the same format as AWS nameservers, which is well-known in the technical community. The addition of generic terms such as “NS” denoting “nameserver” and “DNS” denoting “domain name system”, as well as numbers and hyphens, fails to avoid confusing similarity.
The Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant has not authorised the Respondent to register the disputed domain name.
The Respondent is not commonly known by the disputed domain name and has not used the disputed domain name in connection with a bona fide offering of goods or services. On the contrary, the Respondent is fraudulently impersonating the Complainant and deceiving its customers who may mistype nameservers in their domain name settings, allowing the Respondent to improperly take control of the domain names of Complainant’s customers. Such deceptive conduct demonstrates the Respondent’s lack of rights or legitimate interests in the disputed domain name.
The disputed domain name was registered and is being used in bad faith.
The fact that the Respondent has registered a domain name that incorporates the Complainant’s famous trade mark of itself gives rise to an inference of opportunistic bad faith.
The Respondent had obvious actual knowledge of the Complainant’s mark.
The Respondent’s fraudulent impersonation of the Complainant by using its famous mark and copying the naming conventions for its nameservers, so that the Respondent can take advantage of the Complainant’s customers who mistype those nameservers and take control of their domain names, is further evidence of bad faith.
The Respondent has not responded to the Complainant’s cease and desist letter and has used a privacy service to register the disputed domain name.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsUnder the Policy, the Complainant is required to prove on the balance of probabilities that:
- the disputed domain name is identical or confusingly similar to a trade mark in which the Complainant has rights;
- the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
- the disputed domain name has been registered and is being used in bad faith.
The Complainant has established rights in the mark “AWS” by virtue of its registered trade marks as well as unregistered trade mark rights deriving from its extensive use of that term.
Section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) makes clear that the first element functions primarily as a standing requirement. The test for confusing similarity involves a reasoned but relatively straightforward comparison between the complainant’s trade mark and the disputed domain name.
Section 1.8 of WIPO Overview 3.0 adds that, where the relevant trade mark is recognisable within the disputed domain name, the addition of other terms, whether descriptive, meaningless, or otherwise, would not prevent a finding of confusing similarity under the first element.
Here, the Complainant’s distinctive “AWS” trade mark is readily recognisable within the disputed domain name and, accordingly, neither the acronyms “ns” (for nameserver) and “dns” (for “Domain Name System”), nor the numerals or hyphens, prevent a finding of confusing similarity.
For the above reasons, the Panel concludes that the disputed domain name is confusingly similar to the Complainant’s trade mark.
The Panel therefore finds that the Complainant has established the first element of paragraph 4(a) of the Policy.
B. Rights or Legitimate InterestsAs explained in section 2.1 of WIPO Overview 3.0, the consensus view is that, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If not, the complainant is deemed to have satisfied the second element.
Here, the Complainant has not licensed or otherwise authorised the Respondent to use its trade mark.
Paragraph 4(c) of the Policy gives examples of circumstances which, if proved, suffice to demonstrate that a respondent possesses rights or legitimate interests.
As to paragraph 4(c)(i) of the Policy, there is no evidence of any use of the disputed domain name for a bona fide offering of goods or services, nor of any demonstrable preparations for such an offering.
Nor is there any evidence that paragraphs 4(c)(ii) or (iii) of the Policy apply in the circumstances of this case.
The Panel finds that the Complainant has established a prima facie case of lack of rights or legitimate interests and there is no rebuttal by the Respondent.
The Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name and that the Complainant has therefore established the second element of paragraph 4(a) of the Policy.
C. Registered and Used in Bad FaithIn the Panel’s view, it is appropriate to consider this case in the context of the principles of “passive holding”.
Section 3.3 of the WIPO Overview 3.0 explains that, from the inception of the UDRP, panels have found that the non-use of a domain name would not prevent a finding of bad faith under the doctrine of passive holding.
In this case, the Panel considers that the following cumulative circumstances are indicative of passive holding in bad faith: (i) the distinctiveness and fame of the Complainant’s mark, (ii) the fact that the disputed domain name reflects the format that the Complainant uses for its nameservers, (iii) the failure of the Respondent to submit a response denying the Complainant’s assertion that the disputed domain name was designed to fraudulently impersonate the Complainant and deceive its customers, or to provide any evidence of actual or contemplated good-faith use, and (iv) the implausibility of any good faith use to which the disputed domain name may be put.
For the above reasons, the Panel considers that the Respondent has registered and is using the disputed domain name in bad faith and that the Complainant has established the third element of paragraph 4(a) of the Policy.
7. DecisionFor 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,
Adam Taylor
Sole Panelist
Date: October 11, 2021