Bittrex, Inc. v. John Pandiyan
Claim Number: FA1712001763975
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is John Pandiyan (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bittrexinvest.com>, registered with NameSilo, 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 December 21, 2017; the Forum received payment on December 21, 2017.
On December 21, 2017, NameSilo, LLC confirmed by e-mail to the Forum that the <bittrexinvest.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 December 28, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 17, 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@bittrexinvest.com. Also on December 28, 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 January 18, 2018, 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
Complainant is a U.S.-based company that operates one of the leading cryptocurrency exchanges in the world under the BITTREX mark.
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.
Respondent registered the domain name <bittrexinvest.com> on or about October 8, 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 authorized 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 a legitimate noncommercial or fair use.
Rather, Respondent employs the domain name to attempt to pass itself off as Complainant in aid of a phishing scheme that seeks the login and password information of Internet users that mistakenly think they have reached Complainant’s legitimate website.
Respondent uses the domain name to acquire financial gain.
Respondent has no rights to or legitimate interests in the domain name.
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 trademark 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:
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 sufficient for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark 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 … trademark demonstrates its rights in such mark for the purposes of Policy ¶ 4(a)(i).
This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United Kingdom) other than that in which Respondent resides or does business (here India). See, for example, W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum August 24, 2010):
[T]he Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <bittrexinvest.com> domain name is confusingly similar to Complainant’s BITTREX trade mark. The domain name contains the mark in its entirety, with only the addition of the descriptive term “invest,” which can be taken to relate to an aspect of Complainant’s business, plus the generic Top Level Domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. On the point, see YETI Coolers, LLC v. Randall Bearden, FA 16060016880755 (Forum August 10, 2016) (finding that the words “powder coating” in the <yetipowdercoating.com> domain name are “merely explicative and directly refer to some of the services rendered by the Complainant” and, therefore, create an “irrefutable confusing similarity” to complainant’s YETI mark). See also Dell Inc. v. Protection of Private Person / Privacy Protection, FA 1681432 (Forum August 1, 2016):
A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs.
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 <bittrexinvest.com> domain name, and that Complainant has licensed or otherwise authorized Respondent to use the BITTREX mark for any reason. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as
“John Pandiyan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding, under Policy ¶ 4(c)(ii), that, because the relevant WHOIS record listed “Dale Anderson” as the registrant of a disputed domain name, that respondent was not commonly known by the <statefarmforum.com> domain name). See also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding, under Policy ¶ 4(c)(ii), 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).
We next observe that Complainant asserts, without objection from Respondent, that Respondent uses the <bittrexinvest.com> domain name in connection with a phishing scheme by which it seeks to obtain by deception personally identifiable information from Internet users. A fraudulent phishing scheme cannot create rights to or legitimate interests in a domain name so as to confirm in Respondent as either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Google Inc. v. Pritam Singh / Pandaje Technical Services Pvt Ltd., FA 1660771 (Forum March 17, 2016) (finding that a respondent had not shown a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii) where that respondent fraudulently used a UDRP complainant’s mark on a website containing offers for technical support and password recovery services, and soliciting Internet users’ personal information).
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 challenged <bittrexinvest.com> domain name, which we have found to be confusingly similar to Complainant’s BITTREX trade mark, to seek financial gain by deceiving Internet users into surrendering their personal information via a phishing scheme. Under Policy ¶ 4(b)(iv), this use of the domain name reflects Respondent’s bad faith in registering and using the domain name. See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith under Policy ¶ 4(b)(iv) where:
Respondent registered and uses the … 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 … [it] … is Complainant, or is otherwise affiliated … with Complainant.
It is also plain from the evidence that Respondent knew of Complainant and its rights in the BITTREX mark when it registered the <bittrexinvest.com> domain name. This too stands as proof of Respondent’s bad faith in registering the domain name. See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum August 16, 2007) (rejecting a respondent's contention that it did not register a disputed domain name in bad faith where a panel found that that respondent had knowledge of a UDRP complainant's rights in a mark when registering a confusingly similar domain name).
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 relief shall be GRANTED.
Accordingly, it is Ordered that the <bittrexinvest.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: January 24, 2018
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