Bittrex, Inc. v. kerry klora / korrymo
Claim Number: FA1711001758144
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is kerry klora / korrymo (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bittrex.cash>(‘the Domain Name’), registered with NameCheap, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne of Palmer Biggs IP as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 10, 2017; the Forum received payment on November 10, 2017.
On November 13, 2017, NameCheap, Inc. confirmed by e-mail to the Forum that the <bittrex.cash> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On November 16, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 6, 2017 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@bittrex.cash. Also on November 16, 2017, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On December 8, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs IP 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant’s contentions can be summarised as follows:
Complainant operates one of the leading crypto currency exchanges in the world under the BITTREX mark used since February 2014 in relation to its services. It owns registered trade marks for its BITTREX mark in the UK and EU. It owns bittrex.com.
Respondent has used the Domain Name to impersonate Complainant in order to obtain Complainant’s customers’ confidential information. Respondent’s web site is a direct copy of Complainant’s Bittrex web site and prompts consumers to enter their log in credentials.
The Domain Name registered in 2017 is confusingly similar to Complainant’s BITTREX Mark because it wholly incorporates it and is differentiated only by the addition of the gTLD .cash which is insufficient to mitigate this confusing similarity, especially because ‘.cash’ has a meaning directly relevant to cryptocurrencies.
Respondent has no licence or authorisation to use and is not commonly known by the BITTREX mark. Respondent has not used the Domain Name in connection with a bona fide offering of goods and services or a legitimate non commercial or fair use. Respondent’s fraudulent and illegal activity demonstrates Respondent’s lack of rights and legitimate interests in the Domain Name.
Respondent registered and used the Domain Name to redirect Internet users to a web site that mimics Complainant’s BITTREX web site in order to confuse users into believing Respondent is Complainant or is otherwise affiliated or associated therewith, fulfilling Policy 4 (b)(iv).
Respondent’s use to mimic Complainant’s web site shows actual knowledge of Complainant and its business.
The Domain Name has been registered and used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant operates one of the leading crypto currency exchanges in the world under the BITTREX mark. It owns registered trade marks for its BITTREX mark in the UK and EU for, inter alia, financial services. It owns bittrex.com registered in 2014.
The Domain Name has been used for a site which mimics the official site of Complainant and invites users to log in.
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."
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.
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(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that Respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also 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.”).
Identical or Confusingly Similar
The Domain Name consists of Complainant's BITTREX mark (which is registered in the UK and EU for financial services and has been used since 2014) and the gTLD .cash.
The gTLD .cash does not serve to distinguish the Domain Name from the BITTREX mark, which is the distinctive component of the Domain Name. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to Complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark). This is especially so in this case as ‘.cash’ has a descriptive meaning relating to Complainant’s financial business.
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose to a mark in which Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
Complainant has not authorised the use of its mark. Respondent has not answered this Complaint and there is no evidence or reason to suggest Respondent is, in fact. commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that Respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that Complainant had not licensed or authorized Respondent to use its ALASKA AIRLINES mark).
The web site to which the Domain Name redirects offers financial services in competition with those of Complainant and appears to collect log in information from users. It mimics the official site of Complainant and does not make it clear that there is no commercial connection with Complainant. This is deceptive and confusing and amounts to passing off. As such it cannot amount to the bona fide offering of goods and services. (See DaVita Inc. v Cynthia Rochelo FA 1738034 (Forum July 20, 2017) finding that ‘Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate non commercial or fair use’)
As such the Panel finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the Panel the use made of the Domain Name in relation to the site is confusing and disruptive in that visitors to the site will reasonably believe it is connected to or approved by Complainant as it offers competing financial services under a Domain Name consisting of Complainant’s BITTREX mark on a site mimicking Complainant’s official site.
The mimicking of Complainant’s official site by Respondent shows that Respondent was aware of Complainant and its business at the time of registration.
Accordingly, the Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site under Policy 4 (b)(iv). (See Asbury Auto Group Inc v Tex. Int'l Prop Assocs FA 958542 (Forum May 29, 2007) finding that Respondent's use of the disputed domain name to advertise car dealerships that competed with Complainant's business would likely lead to confusion amongst Internet users as to the authorisation of those competing dealerships and was therefore evidence of bad faith and use). This is also likely to disrupt the business of Complainant as a competitor satisfying Policy 4 (b)(iii).
Attracting Internet users with a web site that is identical to Complainant’s in furtherance of a phishing scheme evinces bad faith registration and use. See Wells Fargo & Co. v Mihael, FA 605221 (Forum Jan. 16, 2006)(finding that resolving a disputed domain name to a ‘doppelganger’ page to obtain customers’ account information constitutes bad faith registration and use pursuant to Policy 4 (b)(iii).)
As such, the Panel believes that Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iv) and 4 (b)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bittrex.cash> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: December 18, 2017
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