DECISION

Amazon.com, Inc. v. Integration Unlimited, Inc.

Claim Number:  FA0308000183725

PARTIES

Complainant is Amazon.com, Inc., Seattle, WA (“Complainant”) represented by James Geringer, of Klarquist Sparkman, LLP.  Respondent is Integration Unlimited, Inc., Kennesaw, GA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <amazonallergy.com>, registered with Network Solutions, Inc.

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.

James A. Carmody, Esq., as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on August 8, 2003; the Forum received a hard copy of the Complaint on August 11, 2003.

On August 13, 2003, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <amazonallergy.com> is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").

On August 19, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 8, 2003 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@amazonallergy.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On September 18, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James A. Carmody, Esq., as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent."  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s <amazonallergy.com> domain name is confusingly similar to Complainant’s AMAZON.COM mark.

2. Respondent does not have any rights or legitimate interests in the <amazonallergy.com> domain name.

3. Respondent registered and used the <amazonallergy.com> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant, Amazon.com, Inc., owns a number of trademark registrations for the AMAZON.COM mark in the United States and internationally. For example, Complainant holds a trademark registration with the U.S. Patent and Trademark Office (“USPTO”) for the AMAZON.COM mark (Reg. No. 2,078,496 registered on July 15, 1997) related to computerized on-line ordering services, featuring the wholesale and retail distribution of books. From its early focus on books and other media materials, Complainant has expanded its operations, and currently sells healthcare products, including allergy related products, in partnership with Drugstore.com.

Respondent, Integration Unlimited, Inc., registered the <amazonallergy.com> domain name on August 9, 2002, without license or authorization to use Complainant’s AMAZON.COM mark for any purpose. Respondent uses the disputed domain name to host a website for “Achoo Allergy,” which operate as an online retailer for allergy related medications.

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."

In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.

Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(2) Respondent has no rights or legitimate interests in respect of the domain name; and

(3) the domain name has been registered and is being used in bad faith.

Identical and/or Confusingly Similar

Complainant has established rights in the AMAZON.COM mark through registration of the mark on the Principal Register of the USPTO, as well as through widespread and continuous use of the mark in commerce.

However, Complainant has not established that the <amazonallergy.com> domain name is confusingly similar to Complainant’s AMAZON.COM mark.While the disputed domain name does incorporate the AMAZON mark, it is not clear what confusingly similar relationship the word “allergy” bears to that mark. Complainant alleges that it sells healthcare products, including allergy related products. However, Complainant also notes that these sales are done in partnership with Drugstore.com and Internet users seeking allergy medications online are redirected to the <drugstore.com> domain name. Thus, while the term “allergy” appears to bear a strong relationship with the activities performed at the <drugstore.com> domain name, it bears little to no actual relationship with the activities performed under Complainant’s AMAZON.COM mark. Under these circumstances, it does not appear that the words “amazon” and “allergy” together in a domain name will create a domain name that is confusingly similar to Complainant’s AMAZON.COM mark. See Prudential Ins. Co. of Am. v. QuickNet Communications, FA 146242 (Nat. Arb. Forum March 27, 2003) (holding that the <prudentialmotors.com> domain name, which incorporated the PRUDENTIAL mark with the addition of the word “motors,” had no apparent connection to Complainant or the insurance and financial industry and was thus not confusingly similar to Complainant’s mark); see also Donald J. Trump and Trump Hotels & Casino Resorts, Inc. v olegevtushenko a/k/a Oleg Evtushenko, FA 101509 (Nat. Arb. Forum Dec. 11, 2001) (finding that if Complainant is really making an initial interest confusion argument, it would have to be suggesting that the public would be expecting that its distinguished moniker and service mark TRUMP would be readily associated with <porntumps.com>). 

Accordingly, the Panel finds that the <amazonallergy.com> domain name is not confusingly similar to Complainant’s AMAZON.COM mark under Policy ¶ 4(a)(i).

Rights or Legitimate Interests and Registration and Use in Bad Faith

As Complainant failed to carry its burden with respect to Policy ¶ 4(a)(i), the Panel need not consider the remainder of the Complaint. See Creative Curb v. Edgetec Int’l Pty. Ltd., FA 116765 (Nat. Arb. Forum Sept. 20, 2002) (finding that because Complainant must prove all three elements under the Policy, Complainant’s failure to prove one of the elements makes further inquiry into the remaining element unnecessary).

DECISION

Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

James A. Carmody, Esq., Panelist

Dated:  September 25, 2003

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