Ripple Labs Inc. v. fixup Bugs / Bixin Financial services ltd.
Claim Number: FA1806001791805
Complainant is Ripple Labs Inc. (“Complainant”), represented by Rachel Jacques of Maschoff Brennan, Utah, USA. Respondent is fixup Bugs / Bixin Financial services ltd. (“Respondent”), Great Britain.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ripplenext.com>, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 14, 2018; the Forum received payment on June 14, 2018.
On June 15, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <ripplenext.com> 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 June 18, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 9, 2018 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@ripplenext.com. Also on June 18, 2018, 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 July 11, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is an American technology company which develops a payment protocol and exchange network. It is in the traditional and virtual currency business. Complainant has rights in the RIPPLE mark based upon registration in the United States in 2013 and uses it to market its goods and services.
Complainant alleges that the disputed domain name is confusingly similar to its mark as Respondent merely adds the descriptive term “next” along with the “.com” generic top-level domain (“gTLD”) to the mark. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not permitted or licensed to use Complainant’s RIPPLE mark and is not commonly known by the disputed domain name. Additionally, Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent uses the disputed domain name to pass off as Complainant in order to offer services that compete directly with Complainant’s business. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent has registered and is using the disputed domain name in bad faith. Respondent attempts to attract, for commercial gain, Internet users by creating a likelihood of confusion with complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the disputed domain name. Specifically, Respondent attracts users to the disputed domain name which offers unrelated and directly competing services. Finally, Respondent must have had actual and/or constructive knowledge of Complainant’s RIPPLE mark prior to registering the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark RIPPLE dating back to 2013.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent uses the disputed domain name to pass off as Complainant and offer competing goods at the resolving website. Further, the resolving website displays Complainant’s mark and logo, and contains misleading statements about Complainant.
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 the 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.”).
The disputed domain name is confusingly similar to Complainant’s RIPPLE mark as it incorporates the mark and merely adds the descriptive term “next” and the “.com” gTLD to the mark. Adding a descriptive term and a gTLD to a mark does not distinguish the disputed domain name from the mark under Policy ¶ 4(a)(i). See Traditional Medicinals, Inc. v. Flippa Chick, FA1006001328702 (Forum July 15, 2010) (“Respondent’s disputed domain name contains Complainant’s SMOOTH MOVE mark in its entirety after removing the space separating the terms of the mark, adds the descriptive terms “herbal tea” and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds that the addition of descriptive terms creates a confusing similarity between the disputed domain name and Complainant’s mark.”); see also See Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). The Panel finds that the disputed domain name is confusingly similar to Complainant’s RIPPLE mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: where a response is lacking WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Additionally, a lack of authorization to use a complainant’s mark may be evidence that a respondent lacks rights or legitimate interests in the disputed domain name. See Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug, 3, 2017) (”Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.”). Here, the WHOIS information identifies Respondent as “fixup Bugs / Bixin Financial services ltd.”, and no information on the record indicates Respondent was authorized to register a domain name incorporating Complainant’s mark. The Panel therefore finds, under Policy ¶ 4(c)(ii), that Respondent has not been commonly known by the disputed domain name.
Furthermore, Respondent’s lack of rights or legitimate interests in the disputed domain name is demonstrated by its failure to use the name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, Respondent attempts to pass off as Complainant and offers competing services at the disputed domain name’s resolving website. Attempting to pass off as a complainant in order to sell competing goods or services is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Nokia Corp. v. Eagle, FA 1125685 (Forum Feb. 7, 2008) (finding the respondent’s use of the disputed domain name to pass itself off as the complainant in order to advertise and sell unauthorized products of the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)); see also Alcon, Inc. v. ARanked, FA 1306493 (Forum Mar. 18, 2010) (“The Panel finds that capitalizing on the well-known marks of Complainant by attracting internet users to its disputed domain names where Respondent sells competing products of Complainant is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). The Panel therefore finds that Respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶¶ 4(c)(i) and (iii).
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent attempts to pass off as Complainant in order to offer competing services at the resolving website. Passing off in order to offer competing services at the disputed domain name may be evidence of bad faith per Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum December 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent’s use of the <saflock.com> domain name to offer goods competing with the complainant’s illustrates the respondent’s bad faith registration and use of the domain name, evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv)). The Panel therefore finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the RIPPLE mark. The resolving website displays Complainant’s mark and logo, and it contains false statements such as “After years of hard work in establishing Ripple community, we finally decided to get bigger with crypto mining and trading services. Welcome to Ripplenext!”. This shows that Respondent was aware of Complainant’s mark. Further, Respondent’s appropriation of Complainant’s mark with the clear intent to trade upon Complainant’s reputation and goodwill and confuse consumers indicate Respondent’s actual knowledge. Constructive notice of a complainant’s mark is insufficient for a finding of bad faith under Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”). However, actual knowledge of a complainant’s rights in a mark may be proven through a totality of circumstances surrounding the registration of the disputed domain name. See Google Inc. v. Ahmed Humood, FA1411001591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to an in competition with Complainant.”). Accordingly, the Panel finds that Respondent had actual knowledge of Complainant’s rights in the RIPPLE mark when it registered the disputed domain name and it finds bad faith registration and use also under Policy ¶ 4(a)(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 <ripplenext.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 11, 2018
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page