Bittrex, Inc. v. Liu
Claim Number: FA1711001758955
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is Liu (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bittrex.me>, registered with Dynadot, LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 16, 2017; the Forum received payment on November 16, 2017.
On November 19, 2017, Dynadot, LLC confirmed by e-mail to the Forum that the <bittrex.me> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, LLC 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 20, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 11, 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.me. Also on November 20, 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 15, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Operating under the BITTREX mark, Complainant manages one of the leading cryptocurrency exchanges in the world.
Complainant holds a registration for the BITTREX trade mark, which is on file with the United Kingdom Intellectual Property Office (“UKIPO”) as Registry No. UK00003231077, registered October 6, 2017.
Complainant has common law rights in the BITTREX mark based on secondary meaning acquired through Complainant’s exclusive use of it since 2014.
Respondent registered the <bittrex.me> domain name on October 24, 2017.
The domain name is confusingly similar to Complainant’s BITTREX mark.
Respondent has not been commonly known by the domain name.
Complainant has not licensed or otherwise permitted Respondent to use the BITTREX mark.
Respondent does not use the domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use.
Rather, Respondent uses the domain name for malicious purposes, so that, when Internet users enter the domain name into a web browser, the resolving website redirects them to various websites, some of which attempt to install malware on their computers.
Respondent has no rights to or legitimate interests in the domain name.
Respondent also offers the domain name for sale.
Respondent knew of Complainant’s rights in the BITTREX mark prior to its registration of the domain name.
Respondent registered and uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trade mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept all reasonable allegations and inferences set out 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) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
Complainant has rights in the BITTREX trade mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trade mark authority, the UKIPO. See, for example, Citigroup Inc. v. Kevin Goodman, FA 1623939 (Forum July 11, 2015):
Complainant’s ownership of UKIPO trademark registrations for the CITI trademark demonstrates its rights in such mark for the purposes of Policy ¶ 4(a)(i).
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <bittrex.me> domain name is confusingly similar to Complainant’s BITTREX trade mark. The domain name contains the mark in its entirety, adding only the generic Top Level Domain (“gTLD”) “.me.” This alteration of the mark, made in forming the domain name, does not save it from the realm of confusing similarity under the standards of the Policy. See Reebok Int’l Ltd. v. Ohno, FA 511463 (Forum August 23, 2005) (finding, under Policy ¶4(a)(i), the <reebok.net> domain name substantively identical to a UDRP complainant’s REEBOK mark because it fully incorporated the mark and merely added a generic Top Level Domain). This is so because every domain name requires a top level domain.
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <bittrex.me> domain name, and that Complainant has not licensed or otherwise permitted Respondent to use the BITTREX mark. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Liu,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that a respondent was not commonly known by disputed domain names, and so failed to show that it had rights to or legitimate interests in them as provided in Policy ¶ 4(c)(ii), where the relevant WHOIS information, as well as other evidence in the record, gave no indication that the respondent was commonly known by the domain names, and where a UDRP complainant had not authorized that respondent to register a domain name containing its mark). See also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that a respondent was not commonly known by a disputed domain name, where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name registration).
We next observe that Complainant contends, without objection from Respondent, that uses the <bittrex.me> domain name maliciously to deceive Internet users into introducing malware to their computers. This employment of the domain name is neither a bona fide offer of goods or services by means of the domain name under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of it under Policy ¶ 4(c)(iii). See Ceridian Corp. v. Versata Software, Inc., FA 1259927 (Forum June 23, 2009) (finding that a UDRP respondent’s use of a disputed domain name to direct Internet users to a website that attempted to download digital viruses on their computers “failed to create any semblance of a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)”).
The panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent uses the <bittrex.me> domain name to introduce malware to the computers of Internet users. Under Policy ¶ 4(b)(iv), this employment of the domain name virtually requires a finding of bad faith registration and use of the domain name by Respondent. See Amazon Technologies, Inc. v. Timothy Mays, FA1504001617061 (Forum June 9, 2015):
In addition, Respondent’s undenied use of the websites resolving from the contested domain names to distribute malware and other malicious downloads further illustrates its bad faith in the registration and use of those domain names.
We are also convinced by the evidence that Respondent knew of Complainant and its rights in the BITTREX mark when it registered the <bittrex.me> domain name. This knowledge further demonstrates Respondent’s bad faith in registering the domain name. See, for example, Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum February 6, 2014):
The Panel … here finds actual knowledge [of a UDRP complainant’s rights in a mark from which a challenged domain name was derived] through the name used for the domain and the use made of it.
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <bittrex.me> domain name be forthwith TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: December 22, 2017
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