The Complainants are A, Inc., Amazon Technologies, Inc. and Amazon Europe Core S.a.r.l. of Seattle, Washington, United States of America ("United States"), represented Rouse and Co. International, United Arab Emirates.
The Respondent is Saeid Abbasi of Qom, Islamic Republic of Iran. 2. The Domain Names and Registry
The disputed domain names , and ("Disputed Domain Names") are registered with IRNIC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 27, 2017. On July 27, 2017, the Center transmitted by email to IRNIC a request for registrar verification in connection with the Disputed Domain Names. On July 30, 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 August 1, 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 August 3, 2017. In accordance with the Rules, paragraph 5(a), the due date for Response was August 23, 2017. On August 25, 2017, the Center notified the Respondent's default.
The Center appointed Gabriela Kennedy as the sole panelist in this matter on September 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 are affiliated companies that offer online retail services under the AMAZON brand. The first Complainant began operating in July 1994, and launched its online store in July 1995. The Complainants and their affiliates hold more than 1,400 trade mark registrations worldwide for marks consisting or comprising of the sign "Amazon", including in the United States and various countries bordering on or in the same region as the Islamic Republic of Iran, where the Respondent is based. The Complainants' United Sates trade mark registrations include AMAZON.COM and AMAZON, the earliest of which was registered on July 15, 1997 (Registration No. 2,078,496) and July 15, 2003 (Registration No. 2,738,837), respectively.
The Respondent is an individual based in the Islamic Republic of Iran. According to IRNIC's verification, he registered the Disputed Domain Name on March 18, 2015, on August 26, 2017, and on December 30, 2017. The Disputed Domain Names and are being used to resolve to an online retail store, whilst the Disputed Domain Name is currently inactive. 5. Parties' Contentions A. Complainants
The Complainants' contentions can be summarized as follows:
(a) The first Complainant was incorporated in July 1994 and launched its online retail store featuring books via "www.a" in July 1995. The first Complainant completed its initial public offering in May 1997 and is currently listed on the Nasdaq stock exchange under "AMZN". The second and third Complainant are affiliates of the first Complainant. The Complainants constitute one of the world's largest online retailers, offering products and services in over 100 different countries. Their products and services include books, cloud services, music, video streaming, games and software, electronics, health and beauty, toys, clothing, etc.
(b) The Disputed Domain Names and currently resolve to an online retail store. The Disputed Domain Name is currently inactive. After the Complainants became aware of the Disputed Domain Name and the related online shopping platform, they issued a letter to the Respondent on December 6, 2016 demanding that the Respondent cease to use any marks that are similar or identical to the Complainants' trade marks and requested them to transfer the Disputed Domain Name to the Complainants. However, the Respondent did not comply with the Complainants' letter and has continued to use the Disputed Domain Name . The Complainants subsequently became aware of the fact that the Respondent had also registered the Disputed Domain Names and .
(c) The Complainants and their affiliates own more than 1,400 trade mark registrations worldwide for marks consisting or comprising of the sign "Amazon", including in the United States and various countries bordering on or in the same region as the Islamic Republic of Iran, where the Respondent is based. The Complainants' United Sates trade mark registrations include AMAZON.COM and AMAZON, the earliest of which was registered on July 15, 1997 and July 15, 2003, respectively. The Complainants trade marks were applied for and issued many years before the Respondent registered the Disputed Domain Names. Previous panelists in Uniform Domain Name Dispute Resolution Policy ("UDRP")1 proceedings have found that the Complainants' AMAZON trade mark is well-known and famous. The Disputed Domain Names are confusingly similar to the Complainants' AMAZON trade mark, as they incorporate the Complainants' trade mark save for minor typos involving one letter. The misspellings do nothing to detract from this confusing similarity, and they remain visually and phonetically confusingly similar to the Complainants' AMAZON trade mark. The Respondent is a typo-squatter, and has deliberately chosen the Disputed Domain Names as they are one erroneous key stroke away from the Complainants' well-known trade mark. This is a misappropriation of the Complainants' goodwill in relation to the AMAZON trade mark and their "www.a" website.
(d) To the Complainants' knowledge, the Respondent has never been commonly known or referred to by the Disputed Domain Names and has never acquired any trade mark rights in relation to them. The Respondent is not affiliated with the Complainants and is not an authorized vendor, supplier or distributor of the Complainants' goods or services. The Complainants have never granted, or in any way authorized the Respondent to register or use the Complainants' AMAZON trade mark. The Respondent has no legitimate interests or rights in the Disputed Domain Names. The Disputed Domain Names and are being used to resolve to an online retail platform that offers various categories of products for sale, and which therefore competes with the Complainants' business. Such use cannot amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. The addition of the letter "n" to the Disputed Domain Name and the omission of the letter "a" in the Disputed Domain Name is insufficient for consumers to understand that the Respondent's online platform is not authorized or associated with the Complainants. The Disputed Domain Name does not currently resolve to a website. However, there is nothing to prevent the Respondent from linking it to its website in the future. The Respondent has previously promoted his website by using banners that incorporate the Complainants' sub-brands, such as its AMAZON FASHION, PRIME VIDEO and FIRE TV trade marks. The Respondent ceased using such banners following receipt of the Complainants' cease and desist letter issued on December 6, 2016.
(e) The Respondent must have been aware of the Complainants and their rights in the AMAZON trade mark at the time he registered the Disputed Domain Names, and the Respondent therefore registered the Disputed Domain Names in bad faith. The Complainants' "www.a" website was the number one most viewed shopping website at the time the Respondent registered the Disputed Domain Names. The Complainants' have been using the AMAZON trade mark for over 20 years before the Respondent registered the Disputed Domain Names. The Complainants' AMAZON trade mark is so well-known that there is no conceivable legitimate use of the Disputed Domain Names. The Disputed Domain Names are confusingly similar to the Complainants' AMAZON trade mark, and the Disputed Domain Names and resolve to online shopping platform that compete with the Complainants' website. Such use amounts to bad faith as it diverts from and disrupts the Complainants' business, and unfairly trades off the Complainants' goodwill in the AMAZON mark.
(f) The Respondent is a serial cybersquatter who holds over 1,000 domain names that are confusingly similar to other well-known trade marks, including , , , etc. B. Respondent
The Respondent did not reply to the Complainants' contentions.
The fact that the Respondent has not submitted a Response does not automatically result in a decision in favour of the Complainants. However, the failure of the Respondent to file a Response may result in the Panel drawing appropriate inferences from such default. The Panel may also accept all reasonable and supported allegations and inferences flowing from the Complaint as true (see Entertainment Shopping AG v. Nischal Soni, Sonik Technologies,WIPO Case No. D2009-1437 and Charles Jourdan Holding AG v. AAIM,WIPO Case No. D2000‑0403). 6. Discussion and Findings
Under paragraph 4(a) of the Policy, the Complainants are required to prove each of the following three elements:
(i) the Disputed Domain Names are identical or confusingly similar to a trade mark or service mark in which the Complainants have rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Names; and
(iii) the Disputed Domain Names have been registered or are being used by the Respondent in bad faith. A. Preliminary issue: Multiple Complainants
The Panel notes that the Complainants are all affiliated companies and thus finds that they all have a specific common grievance against the Respondent and it is equitable and procedurally efficient to permit consolidation on this case. See Section 4.11 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"). B. Identical or Confusingly Similar
The Panel accepts that the Complainants have rights in the AMAZON, AMAZON.COM and related trade marks, based on its registrations in the United States, the earliest of which was obtained on July 15, 1997.
It is a well-established principle that a domain name which contains a common or obvious misspelling of a trade mark will normally be found to be confusingly similar to such trade mark, where the misspelled trade mark remains the dominant or prominent element of the domain name (Fuji Photo Film U.S.A., Inc. v. LaPorte Holdings,WIPO Case No. D2004-0971). In this case, the only difference between the Complainants' AMAZON trade mark and the Disputed Domain Names is the addition of the letter "n" in , the omittance of the letter "a" in , and the replacement of the letter "o" with the letter "a" in . Such variations add no distinctive element, and the Disputed Domain Names still remain visually and phonetically confusingly similar to the Complainants' AMAZON trade mark.
Furthermore, in making an enquiry as to whether a trade mark is identical or confusingly similar to a domain name, the country-code Top-Level Domain ("ccTLD") extensions, in this case ".ir", should generally be disregarded (see A Inc., Amazon Technologies, Inc., Amazon Europe Core S.a.r.l. v. Koroush Amini,WIPO Case No. DIR2017‑0007).
The Panel finds that paragraph 4(a)(i) of the Policy is satisfied. C. Rights or Legitimate Interests
Section 2.1 of the WIPO Overview 3.0 states that once a complainant establishes a prima facie case in respect of the lack of rights or legitimate interests of a respondent, the respondent then carries the burden of demonstrating that it has rights or legitimate interests in the domain name. Where the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy.
The Panel accepts that the Complainants registered and began using the AMAZON trade mark many years before the Disputed Domain Names were registered by the Respondent, and the Complainants have never authorised the Respondent to use its trade mark. Accordingly, the Panel is of the view that a prima facie case has been established and it is for the Respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the Disputed Domain Names. As the Respondent has not submitted a Response to the Complainants' contentions, the Panel will assess the case based on the reasonable inferences that can be drawn from the Complainants' evidence.
Pursuant to paragraph 4(c) of the Policy, the Respondent may establish rights or legitimate interests in the Disputed Domain Names by demonstrating any of the following:
(i) before any notice to the Respondent of the dispute, the Respondent's use of, or demonstrable preparations to use the Disputed Domain Names or a name corresponding to the Disputed Domain Names was in connection with a bona fide offering of goods or services; or
(ii) the Respondent has been commonly known by the Disputed Domain Names, even if he has acquired no trade mark or service mark rights; or
(iii) the Respondent is making a legitimate noncommercial or fair use of the Disputed Domain Names, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
The Respondent has been using the Disputed Domain Names and to resolve to an online retail store, which directly competes with the Complainants' business. The Respondent also used banners that featured the Complainants' trade marks, such as AMAZON FASHION, PRIME VIDEO and FIRE TV, in order to promote its website. The Respondent is therefore clearly aware of the Complainants and has been using the Disputed Domain Names and in the hope and expectation that confused Internet users searching for the Complainants' website will be directed to the Respondent's website. This cannot amount to a bona fide offering of goods or services, as the Respondent is attempting to take advantage of the Complainants' trade marks in order to generate profit.
With regard to the Disputed Domain Name , it is currently not being actively used. As such the Respondent cannot claim any rights or legitimate interests in this Disputed Domain Name.
The Panel finds that paragraph 4(a)(ii) of the Policy is satisfied. D. Registered or Used in Bad Faith
The Complainants began using the AMAZON trade mark more than 20 years before the Respondent registered the Disputed Domain Names. It cannot be mere coincidence that the Respondent registered three domain names that are confusingly similar to the Complainants' AMAZON trade mark and has been using two of those domain names to resolve to an online shopping platform that directly competes with the Complainants' business. The Respondent's website even used to feature banners that included the Complainants' trade marks, such as AMAZON FASHION, PRIME VIDEO and FIRE TV. The Respondent also appears to be in the business of registering well-known trade marks owned by third parties for commercial gain, as he has registered domain names such as , and .
The Panel is therefore of the opinion that this is a clear case of typo-squatting and that the Respondent deliberately registered the Disputed Domain Names with a slight misspelling with the intent to attract or divert Internet users from the Complainants' official website for commercial gain. This constitutes evidence of bad faith.
Lastly, it is also a well-established principle that registration of a domain name that is confusingly similar to a famous trade mark by any entity that does not have a relationship to that mark may itself sufficient evidence of bad faith registration and use (see Veuve Clicquot Ponsardin, Maison Fondée en 1772 v. The Polygenix Group Co.,WIPO Case No. D2000-0163). Given that the Complainants are a well-known worldwide online shopping platform that has been in operation for over 20 years, it is inconceivable that the Respondent was not aware of the reputation and business activities of the Complainants.
In light of the above, the Panel finds that the Respondent registered and is using the Disputed Domain Names in bad faith under paragraph 4(a)(iii) of the Policy. 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 Names, , and , be transferred to the Complainant Amazon Technologies, Inc.
Gabriela Kennedy
Sole Panelist
Date: September 20, 2017
1 While the Complaint is brought under the Policy and not the UDRP, given the similarities between the two, the Panel considers UDRP precedent relevant to the current proceedings, and will refer to it throughout.
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