Complainant is Amazon Europe Core S.à r.l, Luxembourg, represented by Brinkhof, the Netherlands.
Respondent is Agata Konopka, Germany.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 28, 2021. On May 31, 2021, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On the same day, SIDN transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on June 16, 2021, providing the registrant and contact information disclosed by SIDN, and requesting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on June 18, 2021. The Center verified that the Complaint as amended 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 Respondent of the Complaint, and the proceedings commenced on June 25, 2021. In accordance with the Regulations, article 7.1, the due date for Response was July 15, 2021. On July 17, 2021, the Center received an email communication from Respondent, requesting the extension of the Response due date. On July 22, 2021, Complainant reacted to Respondent’s request. The request was not granted by the Center and no further communications were received from Respondent.
The Center appointed Dinant T. L. Oosterbaan as the panelist in this matter on September 13, 2021. 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 BackgroundComplainant is a large retail and technology company founded in 1994, providing e-commerce, cloud computing, digital streaming and artificial intelligence services.
According to the evidence submitted by Complainant, Complainant has obtained multiple registrations for the trademark AMAZON, including European Union Trade Mark AMAZON number 002019412, filed on September 13, 1996, and registered on October 29, 1998.
In addition, Complainant has multiple domain names containing the AMAZON mark, including
SIDN informed the Center that the Domain Name was registered by Respondent on February 25, 2021. The Domain Name redirects to a Dutch language web page entitled “AliExpress”.
The trademark registrations of Complainant were issued prior to the registration of the Domain Name.
5. Parties’ Contentions A. ComplainantComplainant submits that the Domain Name is confusingly similar to Complainant’s AMAZON trademark. The Domain Name incorporates a misspelling of Complainant’s AMAZON trademark by adding the letter “a” to take advantage of errors by users in typing domain names. According to Complainant this is clearly a case of so-called typosquatting.
Complainant submits that Respondent has no rights to or legitimate interests in the Domain Name. According to the information provided by Complainant, the Domain Name redirects to the sales page of one of Complainant’s main e-commerce competitors, AliExpress. Complainant argues that such redirecting use of the Domain Name is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use. Complainant asserts that it has never licensed or authorized Respondent to use any of its trademarks in any way. Respondent is also not commonly known by the Domain Name.
According to Complainant, the Domain Name has been registered and is being used in bad faith. Complainant asserts that, considering the fact that Complainant’s AMAZON trademarks are so well-known, it is implausible that Respondent was not aware of the AMAZON trademarks when it registered the Domain Name. The content of the website to which the Domain Name redirects (being the website of AliExpress, one of Complainant’s main e-commerce competitors) indicates that the Domain Name has been registered in bad faith and it also constitutes use of the Domain Name in bad faith.
B. RespondentRespondent did not reply to Complainant’s contentions.
6. Discussion and FindingsBased on article 2.1 of the Regulations, a claim to transfer a domain name must meet three cumulative conditions:
a. the domain name is identical or confusingly similar to a trademark or trade name protected under Dutch law in which the complainant has rights, or other name mentioned in article 2.1(a) under II of the Regulations; 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.
The Panel affirms that the Respondent’s Extension request was unmotivated and out of time. No substantive Response is before the Panel.
A. Identical or Confusingly SimilarComplainant has established that it is the owner of multiple trademarks, including the European Union Trade Mark AMAZON.
The Domain Name incorporates the entirety of the AMAZON trademark, the only difference being the addition of a further letter “a” in the Domain Name. Decisions under the Regulations have found that a domain name is confusingly similar to a complainant’s trademark where the domain name incorporates the distinctive part or entirety of such trademark. The addition of a further letter “a” may thus be disregarded for this purpose. See also sections 1.7 and 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).1
The country code Top-Level Domain “.nl” may also be disregarded for purposes of article 2.1(a) of the Regulations, see Roompot Recreatie Beheer B.V. v. Edoco LTD,WIPO Case No. DNL2008-0008.
The Panel finds that the Domain Name is confusingly similar to Complainant’s AMAZON trademark.
B. Rights or Legitimate InterestsAs stated in WIPO Overview 3.0, “while the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of ‘proving a negative’, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element”.
In the Panel’s opinion, Complainant has made out a prima facie case that Respondent lacks rights to or legitimate interests in the Domain Name.
According to the undisputed submission and evidence provided by Complainant, the Domain Name redirects to the Dutch-language sales page of one of Complainant’s main e-commerce competitors, AliExpress. Such use of Complainant’s mark to redirect users to a site of a competitor is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use of the Domain Name. There is also no evidence that Respondent has acquired any relevant trademark or service mark rights. In addition, there has never been any business relationship between Complainant and Respondent. There is no indication that Respondent is commonly known by the Domain Name.
No Response to the Complaint was filed and Respondent has not rebutted Complainant’s prima facie case.
The Panel finds that Respondent has no rights to or legitimate interests in the Domain Name.
C. Registered or Used in Bad FaithThe Panel finds that the Domain Name has been registered and is being used in bad faith.
Noting the well-known status of the AMAZON mark and the overall circumstances of this case, the Panel finds it highly likely that Respondent knew or should have known Complainant’s AMAZON mark at the time of registration, especially in view of the fact that the Domain Name redirects to the sales page of one of Complainant’s main e-commerce competitors.
The Panel concludes that Respondent has attempted or is attempting to attract Internet users, for commercial gain, to the website of Respondent through the likelihood of confusion which may arise with the trademarks of Complainant as to the source, sponsorship, affiliation, or endorsement of the website of Respondent, which constitutes registration and use in bad faith.
7. DecisionFor all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the Domain Name,
Dinant T. L. Oosterbaan
Panelist
Date: September 27, 2021
1 In view of the fact that the Regulations are to an extent based on the Uniform Domain Name Dispute Resolution Policy (“UDRP”), it is well established that both cases decided under the Regulations and cases decided under the UDRP, and therefore WIPO Overview 3.0, may be relevant to the determination of this proceeding (see, e.g., Aktiebolaget Electrolux v. Beuk Horeca B.V.,WIPO Case No. DNL2008-0050).