The Complainants are A, Inc. of Seattle, Washington, United States of America ("United States" or "US"), Amazon Technologies, Inc. of Nevada, United States, and Amazon Europe Core S.a.r.l. of Luxembourg, represented by Rouse and Co. International, United Arab Emirates.
The Respondent is Koroush Amini of Tehran, Iran (Islamic Republic of), self-represented. 2. The Domain Name and Registrar
The disputed domain name (the "Disputed Domain Name") is registered with IRNIC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 2, 2017. On March 2, 2017, the Center transmitted by email to IRNIC a request for registrar verification in connection with the disputed domain name. On March 5, 2017, IRNIC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. Hard copies of the Complaint were received by the Center on March 7, 2017.
The Center verified that the Complaint satisfied the formal requirements of the .ir Domain Name Dispute Resolution Policy (the "Policy" or "irDRP"), the Rules for .ir Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for .ir Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 13, 2017. In accordance with the Rules, paragraph 5(a), the due date for Response was April 2, 2017. The Response was filed with the Center on March 26, 2017.
The Center appointed Nick J. Gardner as the sole panelist in this matter on April 6, 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
The Complainants Amazon Technologies, Inc. ("ATI") and Amazon Europe Core S.a.r.l. are affiliates of, and intellectual property holding companies for, the Complainant A, Inc. ("A"). Given that these companies are related corporate entities — and that the right and roles of each is relevant to this proceeding — it is appropriate for this Complaint to be filed on behalf of all these entities. In practical terms it is not generally necessary to distinguish between these entities and by way of convenience, the Panel refers to these entities collectively as "the Complainant".
The Complainant is a well-known on-line retailer. A was incorporated in July 1994 and launched on the World Wide Web in July 1995. A completed its initial public offering in May 1997, and its common stock is listed on the Nasdaq Global Select Market under the symbol "AMZN."
A serves consumer customers throughout numerous retail websites, which include "www.a". A offers millions of unique, new, refurbished and used items for sale via these websites.
A's most recently reported quarterly net sales amounted to USD 32.7 billion, and the company employs 306,800 full-time and part-time employees.
A ranks as number 18 on the "Fortune 500" list of America's largest corporations and as number 8 on Interbrand's list of "Best Global Brands 2016."
The Complainant owns numerous registered trademarks in many jurisdictions around the world for or including the word "amazon" including for example US registered trademark 2,078,496 registered July 15, 1997 for "a" and US registered mark 2,657,226 for "amazon" registered December 3, 2002. These trademarks are referred to collectively in this decision as the "AMAZON trademark".
The Respondent registered the Disputed Domain Name on April 19, 2016. It is linked to a website which offers a wide range of consumer products for sale. The text on the website concerned is in Persian but the look and feel of the website in terms of colour schemes, font types and other stylistic elements is similar in many respects to the Complainant's websites. 5. Parties' Contentions A. Complainants
The Complainant's case can be summarised as follows.
a) The Disputed Domain Name is confusingly similar to the AMAZON trade mark as (i) it incorporates in its entirety the Complainant's well-known and distinctive AMAZON trademark, and (ii) the combination thereof with generic terminology ("arya" is the Persian word meaning "noble") is insufficient to distinguish the Disputed Domain Name from the Complainant's trademark.
b) The Respondent does not have any rights or legitimate interests in the Disputed Domain Name.
c) The Respondent uses the Disputed Domain Name in bad faith as the website to which the Disputed Domain Name resolves, makes use of the Complainant's AMAZON trademark to attract customers who will be confused and will believe the Respondent's website is that of the Complainant or is authorised by the Complainant. B. Respondent
The main points made by the Respondent in his Response are as follows (quoted verbatim where appropriate as it is not always easy to discern exactly what point the Respondent is making):
"The name, "amazonarya" is simply a combination of two names. Amazon which is a river and jungle in America and Arya which is purely an Iranian name.
"Arya"= is Persian's (Iranian's) Race. Amazon Company definitely does not represent Amazon River
or Amazon Jungle. By our website's name, we meant a river of Persian goods. In case you
have problems with the font amazonarya has been written, we can change it".
"Our website activities are solely in Iran. Our website has nothing to do with your country, territory, or business world".
"Our logo includes our name in Persian (Iranian) font. We have spent a lot of money, time, and effort for making amazonarya known in Iran, a country with 80 million populations. We have spent a lot of money advertising amazonarya, and Amazon We Services. Now this domain (website), amazonarya, is a very well-known website. A few people are working for this online shopping business; they are earning money, and making a living. This is very valuable. Should we lose all these opportunities and erase all this hard work and effort and close out this market for the sake of a name which specifically has the symbol of Iran?"
"We respect Amazon Company and its well-established name; we do not want to cause the well-known company of Amazon any damages or troubles. In case we cooperate, this would be a greater success for both of us. We are the best partner for Amazon. You will never find a better partner than us. We have prepared all the fields for a profitable business. Hand in hand and with your help, amazonarya could be converted to the local Amazon company that you desire. Then, Amazon could have access to a country of 80 million populations."" 6. Discussion and Findings Preliminary issue - Nature of the Policy
So far as the Policy is concerned the Panel notes that it is substantially similar to (though not identical to) the Uniform Domain Name Dispute Resolution Policy (the "UDRP") as adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN"). The Panel will where appropriate apply principles that have been established in relation to the UDRP in determining this dispute. Preliminary issue - Language of the proceedings
The registration agreement applicable to the Disputed Domain Name is in English. Correspondence from the Respondent indicates he is familiar with the English language. The Complainant has requested that the language of the proceedings be English and no alternative language has been suggested by the Respondent. The Panel concludes that the language of the proceedings should be English. Substantive Issues
Paragraph 4(a) of the Policy states that the Complainant must prove each of the three following elements:
i. the Disputed Domain Name is identical to or confusingly similar to a trademark or service mark in which the Complainant has rights;
ii. the Respondent has no rights or legitimate interests in the Disputed Domain Name; and
iii. the Disputed Domain Name has been registered or is being used in bad faith. A. Identical or Confusingly Similar
The Complainant has submitted detailed evidence that it is the owner of the registered trademark AMAZON (the "AMAZON" trademark).
The Panel holds that the Disputed Domain Name is confusingly similar to the above trademark. The Disputed Domain Name, as registered by the Respondent, incorporates the AMAZON trademark. Previous UDRP panels have consistently held that domain names are identical or confusingly similar to a trademark for purposes of the Policy, "when the domain name includes the trademark, or a confusingly similar approximation, regardless of the other terms in the domain name" (Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale,WIPO Case No. D2000-0662). The only differences in the present case is the addition of the generic word "arya" which the evidence establishes is a Persian word meaning "noble". This addition does not suffice to negate the similarity between the Disputed Domain Name and the Complainant's AMAZON trademark.
It is established that, where a mark is the distinctive part of a disputed domain name, the disputed domain name is considered to be confusingly similar to the registered mark (DHL Operations B.V. v. DHL Packers,WIPO Case No. D2008-1694).
It is also established that the addition of a generic term (such as here "arya") to the Disputed Domain Name has little, if any, effect on a determination of legal identity or confusing similarity between the domain name and the mark (Quixtar Investments, Inc. v. Dennis Hoffman,WIPO Case No. D2000-0253); furthermore, mere addition of a generic or descriptive term does not exclude the finding of confusing similarity (PRL USA Holdings, Inc. v. Spiral Matrix,WIPO Case No. D2006-0189).
It is also well established that the specific generic Top-Level Domain suffix (in this case ".ir") does not generally affect the domain name for the purpose of determining whether it is identical or confusingly similar – see for example Rollerblade, Inc. v. Chris McCrady,WIPO Case No. D2000-0429.
Accordingly the Panel finds that the Disputed Domain Name is confusingly similar to the Complainant's trademark and hence the first condition of paragraph 4(a) of the Policy has been fulfilled. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy non-exhaustively lists three circumstances that demonstrate a right or legitimate interest in the domain name:
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.
None of these apply in the present circumstances. The Complainant has not authorized, licensed, or permitted the Respondent to register or use the Disputed Domain Name or to use the AMAZON trademark. The Complainant has prior rights in the AMAZON trademark which precede the Respondent's registration of the Disputed Domain Name. The Complainant has therefore established a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name and thereby the burden of production shifts to the Respondent to produce evidence demonstrating rights or legitimate interests in respect of the Disputed Domain Name (see, e.g., Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455).
The Panel finds that the Respondent has failed to produce any evidence to establish any rights or legitimate interests in the Disputed Domain Name. Accordingly the Panel finds that the Respondent has no rights or legitimate interests in the Disputed Domain Name and the second condition of paragraph 4(a) of the Policy has been fulfilled. C. Registered and Used in Bad Faith
In the present circumstances, the distinctive nature of the AMAZON trademark, and the evidence as to the extent of the reputation the Complainant enjoys in the AMAZON trademark, and the confusingly similar nature of the Disputed Domain Name to the AMAZON trademark, and the lack of any credible explanation from the Respondent as to why he registered the Disputed Domain Name leads the Panel to conclude the registration and use was in bad faith. In the present case, the Panel concludes that it is inconceivable that the Respondent selected the Disputed Domain Name independently and without knowledge of the Complainant, its trademark, or its products. The website operated by the Respondent at the Disputed Domain Name is clearly presented in a manner which mimics the Complainant's websites and the Panel has no doubt the Respondent was by use of the Disputed Domain Name seeking to suggest he had a connection with the Complainant in the course of trade, whether by suggesting that he was the Complainant or that he was authorized or approved by the Complainant. The Respondent is neither. As such his behaviour clearly amounts to that specified in paragraph 4(b)(iv) of the Policy as being evidence of registration and use in bad faith, namely "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".
The Panel does not regard as credible the various explanations advanced by the Respondent to justify his registration and use of the Disputed Domain Name. He says it is intended to refer to a "river of goods" and presumably is suggesting he uses the word "amazon" because of its relation to the river of that name. It is quite clear both from the Response taken as a whole, and from even a cursory examination of the Respondent's website, that the Respondent seeks to establish a connection between his website and those of the Complainant, so that customers are confused into believing the Respondent's website is that of the Complainant or is authorised by the Complainant. The further arguments advanced by the Respondent, such as the fact that he only carries on business in Iran, and has spent significant sums developing his business, and that his website is well-known and successful, are irrelevant so far as the Policy is concerned.
As a result the Panel finds that the Disputed Domain Name has been registered and is being used in bad faith. Accordingly the third condition of paragraph 4(a) of the Policy has been fulfilled. 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 the Complainant, Amazon Technologies, Inc.
Nick J. Gardner
Sole Panelist
Date: April 20, 2017
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