WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Amazon.com, Inc., Amazon Technologies, Inc., Amazon Europe Core S.a.r.l. v. Koroush Amini
Case No. D2017-0427
1. The Parties
The Complainants are Amazon.com, 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 <amazonarya.com> (the "Disputed Domain Name") is registered with Realtime Register B.V. (the "Registrar").
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 e-mail to the Registrar a request for registrar verification in connection with the disputed domain name. On March 2, 2017, the Registrar transmitted by e-mail to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 10, 2017. In accordance with the Rules, paragraph 5, the due date for Response was March 30, 2017. The Response was filed with the Center on March 26, 2017. On April 2, 2017 the Center received an e-mail communication from the Respondent. This is discussed further below.
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 Amazon.com, Inc. ("Amazon.com"). 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, as these entities have done in previous UDRP proceedings. 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. Amazon.com was incorporated in July 1994 and launched on the World Wide Web in July 1995. Amazon.com completed its initial public offering in May 1997, and its common stock is listed on the Nasdaq Global Select Market under the symbol "AMZN."
Amazon.com serves consumer customers throughout numerous retail websites, which include "www.amazon.com". Amazon.com offers millions of unique, new, refurbished and used items for sale via these websites.
Amazon.com'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.
Amazon.com 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 "amazon.com" 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 17, 2016. It is used to redirect visitors to a website located at "www.amazonirya.ir" 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. The <amazonarya.ir> domain name is subject to a separate complaint under the applicable policy relating to .ir domain names.
5. Parties' Contentions
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 a 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 via redirection, 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.
On April 2, 2017 the Respondent sent an e-mail to the Center. The Panel will in its discretion treat this e‑mail as the Respondent's Response. Its substantive content read as follows:
"Given that once we have announced that there is no Copyright law in Iran and Copyright law is not enforced in Iran, we renewed our domains (amazonarya.ir and amazonarya.com) for one year.
Please note that I, Kourosh Amini, do not accept any responsibilities for the payment of any processes, any meetings, or any appointments. We have sent our suggestions to Amazon and we will wait for Amazon's reply until April 7 2017. In case we do not receive any replies from Amazon by that date, we will consider that as the end of the complaint. I am ready to consider proposal agreements from Amazon".
6. Discussion and Findings
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.
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 and 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 ".com") 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 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".
Further the Panel notes the only argument advanced by the Respondent to justify his actions is to suggest that copyright law does not apply in Iran. Whether or not that is correct is wholly irrelevant so far as the Policy is concerned and the Panel concludes the Respondent has failed to present any case of legitimate use entitling him to have registered and used the Disputed Domain Name. For completeness the Panel notes that it is also aware of the arguments advanced by the Respondent in the proceedings relating to the domain name <amazonarya.ir>. The Panel would reject those arguments in this proceeding were the Respondent to advance them, for the same reasons as set out in the decision relating to <amazonarya.ir>.
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.
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, <amazonarya.com>, be transferred to the Complainant Amazon Technologies, Inc.
Nick J. Gardner
Date: April 20, 2017