The Complainant is Amazon Technologies, Inc., United States of America (“United States” or “US”), Amazon Europe Core S.à.r.l., Luxembourg, represented by Hogan Lovells (Paris) LLP, France.
The Respondent is Prashant Kumar, India. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 17, 2020. On February 18, 2020, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On February 19, 2020, SIDN transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Dispute Resolution Regulations for .nl Domain Names (the “Regulations”). In accordance with the Regulations, articles 5.1 and 16.4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 21, 2020. In accordance with the Regulations, article 7.1, the due date for Response was March 12, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 18, 2020. The Center appointed Willem J. H. Leppink as the panelist in this matter on April 16, 2020. The Panel finds that it was properly constituted. The Panelist has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required to ensure compliance with the Regulations, article 9.2. 4. Factual Background The Complainant (i.e. Amazon Technologies, Inc. and Amazon Europe Core S.à.r.l.) is a subsidiary of Amazon.com, Inc., incorporated in the US and founded in 2004. The Complainant is a global player in e-commerce, cloud computing, digital streaming, and artificial intelligence. Since its inception, the Complainant has continuously used the domain name The Complainant owns numerous well-known trademark registrations worldwide for AMAZON and variations thereof, including: - European Union Trademark Registration No. 002019412 for AMAZON, registered on October 29, 1998; and - Benelux Trademark Registration No. 0650051 for AMAZON, registered on December 1, 1991, (hereinafter also referred to in singular as the “Trademark” in singular). The Domain Name was registered on October 16, 2019. At the time of the filing of the Complaint, the Domain Name resolved to a website that purports to be a customer-service website for Dutch customers of Amazon. 5. Parties’ Contentions A. Complainant The Complainant contends the following. The Domain Name is confusingly similar to the Trademark. The Domain Name incorporates the Trademark in its entirety as its leading element, together with the descriptive term “Dutch” as a suffix. The addition of the term “Dutch” does not prevent a finding of confusing similarity between the Domain Name and the Complainant’s Trademark. Furthermore, the country code Top-Level Domain (“ccTLD”) “.nl” may be disregarded for the purposes of assessment under the first element. The Respondent has no rights or legitimate interests in respect of the Domain Name. The Respondent is not authorized or permitted to use the Trademark, nor is the Respondent associated with the Complainant. Furthermore, the Respondent is not using the Domain Name in connection with a bona fide offering of goods and services. The Respondent is in fact engaged in a fraudulent scheme designed to induce unsuspecting Internet users into calling the Respondent, in which situation they may be asked to disclose their Amazon usernames, passwords, and private financial information, whilst the Respondent impersonates the Complainant. The Domain Name was registered and is being used in bad faith. The Complainant is globally well-known. The Domain Name was registered 20 years after the Trademark was first registered. The Respondent must have been well aware of the Complainant and its rights and seeks to mislead consumers by creating a misleading impression of association with the Complainant. At the date of filing of the Complaint, the Complainant was aware of at least one instance of the Respondent being reported, whereby one customer was illicitly charged EUR 400 when seeking support for the payment of a refund. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Pursuant to article 2.1 of the Regulations the Complainant must prove each of the following three elements: a. the Domain Name is identical or confusingly similar to: I) a trademark or trade name protected under Dutch law in which the Complainant has rights; or II) a personal name registered in the General Municipal Register (Gemeentelijke Basisadministratie) of a municipality in the Netherlands, or the name of a Dutch public legal entity or the name of an association or foundation registered in the Netherlands under which the Complainant undertakes public activities on a permanent basis; and b. the Respondent has no rights to or legitimate interests in the Domain Name; and c. the Domain Name has been registered or is being used in bad faith. Article 10.3 of the Regulations provides that in the event a respondent fails to submit a response, the complaint shall be granted unless the panel considers it to be without basis in law or in fact. The Panel thereby notes that this does not mean that the requested remedy should automatically be awarded. The Panel will have to determine whether the Complainant’s case prima facie meets the requirements of article 2.1 of the Regulations. A. Identical or Confusingly Similar Pursuant to article 2.1(a) of the Regulations, the Complainant must establish that the Domain Name is identical or confusingly similar to a trademark or trade name in which the Complainant has rights. The Complainant has established that it has rights in the Trademark in, amongst others, the European Union and the Benelux. The Domain Name incorporates the Trademark in its entirety. The addition of the descriptive geographical term “Dutch” may be disregarded for purposes of article 2.1(a) of the Regulations (Roompot Recreatie Beheer B.V. v. Edoco LTD,WIPO Case No. DNL2008-0008) and (Fossil Group Europe GmbH and Fossil Group, Inc. v. Anke Eisenhower soho,WIPO Case No. DNL2017-0010). Furthermore, it is accepted .nl case law that the ccTLD “.nl” may be disregarded for purposes of article 2.1(a) of the Regulations. The Panel finds that the Domain Name is confusingly similar to the Trademark. The Complainant has established the first element of article 2.1 of the Regulations. B. Rights or Legitimate Interests The Respondent did not reply to the Complainant’s contentions. Consistent with earlier decisions under the Regulations, the Complainant must prima facie demonstrate that the Respondent has no rights to or legitimate interests in the Domain Name. If the Complainant succeeds in making out this prima facie case, the burden of production shifts to the Respondent, who will then have to come forward with appropriate allegations or evidence demonstrating a right to or legitimate interests in the Domain Name (See Auto 5 v. E. Shiripour,WIPO Case No. DNL2008-0027). The Respondent may demonstrate such rights or legitimate interests inter alia through any of the following circumstances based on article 3.1 of the Regulations: a. before having any notice of the dispute, the Respondent made 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 b. the Respondent as an individual, business or other organization is commonly known by the Domain Name; or c. the Respondent is making a legitimate noncommercial use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish or otherwise damage the relevant trademark, trade name, personal name, name of a Dutch public legal entity or name of an association or foundation located in the Netherlands. There is no evidence submitted by the Parties that the Respondent has any rights or legitimate interests in the Domain Name. The Respondent does not appear to be affiliated with the Complainant in any way. There is no evidence that the Respondent is commonly known as “AMAZON”. There is also no evidence that the Respondent is, or has ever been, a licensee of the Complainant or that the Respondent has ever been permitted in any way by the Complainant to register or use the Trademark, or to apply for or use any domain name incorporating either of these. The Respondent did not demonstrate any use or demonstrable preparation to use the Domain Name in connection with a bona fide offering of goods or services. In fact, the Respondent uses the Domain Name to impersonate the Complainant by creating a website which contains the Trademark and redirects Internet users to genuine help-pages at the Complainant’s Website in order to lend a veneer of authenticity to the Respondent’s website. By impersonating the Complainant, the Respondent induces Internet users to provide personal financial information, which information is used in fraudulent activities conducted by the Respondent. This fraudulent use by the Respondent cannot be considered a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the Domain Name (Koole Tanktransport B.V. v. Domains By Proxy, LLC / Export Department,WIPO Case No. DNL2016-0034). Consequently, the Panel finds it established that the Respondent has no rights or legitimate interests in the Domain Name. The Complainant has thus established the second element of article 2.1 of the Regulations. C. Registered or Used in Bad Faith The Panel notes that the Trademark is, as are the activities of the Complainant, well-known throughout the world. Furthermore, as the Respondent has sought to impersonate the Complainant, the Respondent registered the Domain Name in full knowledge of the Complainant’s existence and rights, in order to create a misleading impression of affiliation with the Complainant. The submitted evidence that the Domain Name appears to have been registered as part of an abusive pattern of domain name registrations by the Respondent, targeting consumers of various trademark owners, is considered further evidence of the Respondent’s bad faith registration of the Domain Name. The Panel finds that the Respondent registered the Domain Name in bad faith. Although for establishing the third element, registration in bad faith is sufficient, the Panel also finds that the Domain Name is being used in bad faith. The Panel finds that the evidence submitted by the Complainant proves that the Domain Name is being used for illicit activities and potentially exposes Internet users to acts of financial fraud. On this basis, the Panel finds that the Respondent intentionally attempts to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Trademark as to the source, sponsorship, affiliation, or endorsement of its website, which constitutes registration and use in bad faith pursuant to article 3.2(d) of the Regulations. The Panel therefore finds that the Complainant has also established the third element of article 2.1 of the Regulations. 7. Decision For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the Domain Name Willem J. H. Leppink
Panelist
Date: April 30, 2020
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