WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Amazon.com, Inc. v. amazon-sales.com
Case No. D2002-1006
1. The Parties
The Complainant is Amazon.com, Inc., 1200 12 th Avenue South, Suite 1200, Seattle, Washington 98144-2734, United States of America, represented by Jones, Day, Reavis & Pogue, United States of America.
The Respondent is amazon-sales.com of Columbus, New Jersey, United States of America.
2. The Domain Name and Registrar
The disputed domain name <amazon-sales.com> (the "Domain Name") is registered with Tucows (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 30, 2002. On October 31, 2002, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name at issue. On October 31, 2002, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform 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 November 6, 2002. In accordance with the Rules, paragraph 5(a), the due date for Response was November 26, 2002. The Respondent did not submit any response. On November 27, 2002, the Center issued a Notification of Respondent Default.
On November 26, 2002, counsel for Complainant wrote to the Center stating that the parties were in settlement negotiations and requesting a 30-day stay of the proceedings. On November 29, 2002, the Center notified the parties that the proceedings would be stayed until December 28, 2002. On December 20, 2002, counsel for Complainant wrote to the Center seeking an additional 20-day stay of the proceedings. On December 31, 2002, the Center notified the parties that the proceedings would be stayed until January 20, 2003. On January 20, 2003, Complainant requested that the proceedings be re-instituted.
The Center appointed Michelle Brownlee as the sole Panelist in this matter on January 22, 2003. 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
Complainant operates a well-known online retail website using the domain name <amazon.com> and does business under the trademark and service mark AMAZON.COM. Complainant owns trademark registrations for the AMAZON.COM trademark in more than 70 countries.
5. Partiesí Contentions
In August 2002, Complainant began receiving Complaints from persons who had received emails that appeared to be sent from the email address email@example.com and stated that they were confirming the recipientsí purchases of electronic equipment. The emails informed recipients that they could cancel the order through a link in the email, which directed recipients to Respondentís website at the URL "http://www.amazon-sales.com." The page that recipients were directed to displayed Complainantís logo and appeared to be Complainantís website. The page asked the visitor to input his or her credit card type, number and expiration date, as well as name, address, phone number, date of birth, motherís maiden name and social security number. Complainant received more than six thousand Complaints regarding these email messages.
Respondent also used a number of "AMAZON" variations in the meta tags on its website using the Domain Name. Accordingly, even persons who did not receive the phony email message might be misdirected to Respondentís site and prompted to enter their credit card information.
Complainant contends that the alleged facts demonstrate that Respondent has registered and is using the Domain Name in bad faith without any right or legitimate interest.
The Respondent did not reply to the Complainantís contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to be entitled to a transfer of a domain name, a complainant must prove the following three elements:
(1) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(2) the 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.
A. Identical or Confusingly Similar
The Domain Name is identical to Complainantís trademark and website address except for the addition of the hyphen and the word "sales." Pairing of Complainantís famous trademark with the generic word "sales" is likely to lead Internet users to believe that the Domain Name is a site affiliated with Complainant. Other panels have found confusing similarity under similar circumstances. See, e.g., Parfums Christian Dior v. 1 Netpower, Inc. (WIPO Case No. D2000-0022, March 3, 2000) (<christiandiorcosmetics.com> and <christiandiorfashions.com> confusingly similar to CHRISTIAN DIOR); Toyota Motor Sales USA v. Rafi Hamid dba ABC Automobile Buyer (WIPO Case No. D2001-0032, March 28, 2001) (<leasinglexus.com> and <lexuselite.com> confusingly similar to LEXUS). Accordingly, the Panel finds that the Domain Name is confusingly similar to Complainantís trademark.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides that a respondent can demonstrate a legitimate interest in a domain name by demonstrating one of the following facts:
(i) before receiving any notice of the dispute, the respondent used or made preparations to use the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent has been commonly known by the domain name; or
(iii) the respondent is 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 at issue.
Complainant has made a prima facie showing that Respondent does not have rights or legitimate interests in the Domain Name. Respondent has not provided any evidence of rights or legitimate interests in the Domain Name, and the facts alleged by Complainant demonstrate that Respondent is using the Domain Name for illegitimate purposes, namely, to misrepresent Respondent as being authorized by Complainant in order to defraud persons into giving Respondent credit card information.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that the following circumstances are evidence of registration and use of a domain name in bad faith:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the complainantís mark as to the source, sponsorship, affiliation, or endorsement of its website or location or of a product or service on its website or location.
It is beyond doubt that the allegations and supporting evidence submitted by Complainant demonstrate that Respondent has registered and used the name in bad faith in violation of Paragraph 4(b)(iv) of the Policy.
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name be transferred to the Complainant.
Date: January 30, 2003