DECISION

Amazon.com, Inc. v. Kiansu Thoi

Claim Number:  FA0401000231669

PARTIES

Complainant is Amazon.com, Inc. (“Complainant”), represented by James E. Geringer, of Klarquist Sparkman LLP, One World Trade Center, Suite 1600, 121 SW Salmon Street, Porland, OR 97204.  Respondent is Kiansu Thoi (“Respondent”), 1A Hoang Dieu Street, Hanoi, 84-4, Vietnam.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <amzon.com>, registered with iHoldings.com, Inc. d/b/a Dotregistrar.Com.

PANEL

The undersigned certify that they have acted independently and impartially and that to the best of their knowledge they have no known conflicts in serving as Panelists in this proceeding. The Panel consists of Honorable Irving H. Perluss (Ret.), Honorable Ralph Yachnin (Ret.) and Honorable Carolyn Marks Johnson (Ret.).  Former Judge Johnson prepared the Decision of the Panel.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically January 26, 2004; the Forum received a hard copy of the Complaint January 26, 2004.

On January 27, 2004, iHoldings.com, Inc. d/b/a Dotregistrar.Com confirmed by e-mail to the Forum that the domain name <amzon.com> is registered with iHoldings.com, Inc. d/b/a Dotregistrar.Com and that Respondent is the current registrant of the name. iHoldings.com, Inc. d/b/a Dotregistrar.Com verified that Respondent is bound by the iHoldings.com, Inc. d/b/a Dotregistrar.Com 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 February 3, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 23, 2004, 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@amzon.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 March 8, 2004, pursuant to Complainant's request to have the dispute decided by a three-member Panel, the Forum appointed the above-named former judges as Panelists.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum 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. The domain name registered by Respondent, <amzon.com>, is confusingly similar to Complainant’s AMAZON.COM mark.

2. Respondent has no rights to or legitimate interests in the <amzon.com> domain name.

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

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

FINDINGS

The Panel finds that Complainant established that the disputed domain name <amzon.com> is confusingly similar to Complainant’s protected Amazon.com mark. Further, Complainant established that the Respondent has no rights to or legitimate interests in the mark or domain name.  The Panel finds that Respondent registered the domain name in bad faith and that Complainant should prevail in this proceeding.

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 will draw such inferences as the Panel 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 to and/or Confusingly Similar

Complainant is Amazon.com, Inc.  Complainant registered the AMAZON.COM mark June 15, 1997 (Reg. No. 2,078,496).  The AMAZON.COM mark is also the company’s domain name, <amazon.com>, housing the entire retail business on-line. Complainant established with extrinsic proof that its mark is distinctive.  See Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive and have acquired secondary meaning”); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) (finding that Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.  Respondent has the burden of refuting this assumption).

The Panel finds that Respondent’s <amzon.com> domain name is confusingly similar to Complainant’s AMAZON.COM mark because the only difference is the omission of the letter “a,” which does not distinguish the domain name from the mark.  See State Farm Mut. Auto. Ins. Co. v. Try Harder & Co., FA 94730 (Nat. Arb. Forum June 15, 2000) (finding that the domain name <statfarm.com> is confusingly similar to Complainant’s STATE FARM mark); see also Hewlett-Packard Co. v. Zuccarini, FA 94454 (Nat. Arb. Forum May 30, 2000) (finding the domain name <hewlitpackard.com> to be identical or confusingly similar to Complainant’s HEWLETT-PACKARD mark).

Complainant met the requirements of ICANN Policy ¶ 4(a)(i), showing “confusing similarity.”

Rights to or Legitimate Interests

Complainant established with extrinsic proof in this proceeding that the disputed domain name is confusingly similar to a mark in which Complainant has exclusive rights. Respondent did not file a Response and in such circumstances, the Panel may accept all reasonable inferences in the Complaint to be true.  See Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint”); see also Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that Respondent’s failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true).

Complainant alleges that Respondent’s website refers to Complainant’s business (by opening a “zero-sided” AMAZON.COM window).  Additionally, Complainant alleges that Respondent is attempting to earn “credit” under Complainant’s affiliate program.  The Panel finds that Respondent’s use of the disputed domain name is not a bona fide offering of goods or services, pursuant to Policy ¶ 4(c)(i), and it is not a fair use of the domain name, pursuant to Policy ¶ 4(c)(iii).  See Deluxe Corp. v. Dallas Internet, FA 105216 (Nat. Arb. Forum Apr. 10, 2002) (finding Respondent had no rights or legitimate interests pursuant to Policy  ¶ 4(a)(ii) where it used the domain name <deluxeform.com> to redirect users to Complainant’s <deluxeforms.com> domain name and to receive a commission from Complainant through its affiliate program); see also Computerized Sec. Sys., Inc. d/b/a SAFLOK v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (holding that Respondent’s appropriation of Complainant’s mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services).

Respondent’s WHOIS information establishes that Respondent is not commonly known by the AMAZON.COM mark or by the disputed domain name, <amzon.com>, pursuant to Policy ¶ 4(c)(ii).  See Tercent Inc. v. Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark).

The Panel notes that Respondent’s failure to file a Response in this action does not automatically imply that Respondent lacks rights in the disputed domain name. See VeriSign Inc. v. VeneSign C.A., D2000-0303 (WIPO June 28, 2000) (finding that Respondent’s default does not automatically lead to a ruling for Complainant).  However, taking into consideration the full circumstances of the proof offered in this case, the Panel finds that the overwhelming weight of the evidence supports Complainant’s allegations.

Complainant met the requirements of ICANN Policy ¶ 4(a)(ii), showing that Respondent had “no rights or legitimate interests.”

Registration and Use in Bad Faith

Complainant alleges that Respondent’s registration and use of the disputed domain name is typosquatting and that it preys on Complainant’s customers who mistype Complainant’s mark and domain name in search of Complainant’s goods.  See Nat’l Ass’n of  Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting is the intentional misspelling of words with intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors.  Typosquatting is inherently parasitic and of itself evidence of bad faith”); see also Sports Auth. Mich., Inc. v. Internet Hosting, FA 124516 (Nat. Arb. Forum Nov. 4, 2002) (stating that, “Redirecting Internet users attempting to reach a complainant’s website in order to gain a profit off of a complainant is one example of bad faith use and registration under the Policy”).  The Panel finds that such conduct disrupts the business of a competitor and supports findings of bad faith pursuant to Policy ¶ 4(b)(iii).   See Sports Auth. Mich., Inc. v. Elias Skander d/b/a Web Registration Service, FA 135598 (Nat. Arb. Forum Jan. 7, 2002) (stating that “[b]y registering the “typosquatted” domain name in [Complainant’s] affiliate program, Respondent profits on the goodwill of [Complainant’s] protected marks and primary Internet domain names,” evidence of bad faith registration and use); see also Fossil, Inc. v. NAS, FA 92525 (Nat. Arb. Forum Feb. 23, 2000) (transferring the <fossilwatch.com> domain name from Respondent, a watch dealer not otherwise authorized to sell Complainant’s goods, to Complainant).

Complainant met the requirements of Policy ¶ 4(a)(iii), showing “bad faith registration and use.”

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.  Accordingly, it is Ordered that the <amzon.com> domain name be TRANSFERRED from Respondent to Complainant.

Hon. Irving H. Perluss (Ret.), Hon. Ralph Yachnin (Ret.),

and Hon. Carolyn Marks Johnson (Ret.), Panelists

Dated: March 19, 2004.

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