Bittrex, Inc. v. Kevinc Mccal
Claim Number: FA1712001765085
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is Kevinc Mccal (“Respondent”), Great Britain.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bittrex.tel>, registered with Regional Network Information Center, JSC dba RU-CENTER.
The undersigned certifies that they have acted independently and impartially, and, to the best of their 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 29, 2017; the Forum received payment on December 29, 2017.
On January 9, 2018, Regional Network Information Center, JSC dba RU-CENTER confirmed by e-mail to the Forum that the <bittrex.tel> domain name is registered with Regional Network Information Center, JSC dba RU-CENTER and that Respondent is the current registrant of the name. Regional Network Information Center, JSC dba RU-CENTER has verified that Respondent is bound by the Regional Network Information Center, JSC dba RU-CENTER 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 January 9, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 29, 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@bittrex.tel. Also on January 9, 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 January 30, 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(s) be transferred from Respondent to Complainant.
A. Complainant
Complainant operates one of the leading cryptocurrency exchanges in the world under its BITTREX mark.
Complainant holds a registration for the BITTREX mark, which is on file with the United Kingdom’s Intellectual Property Office (“UKIPO”) as Registry No. UK00003231077, registered May 15, 2017.
Complainant also claims common law rights in the mark, dating back to its first use of the mark in commerce in February of 2014.
Respondent registered the domain name <bittrex.tel> on December 9, 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 in any manner.
Respondent’s use of the domain name is not in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Rather, Respondent uses the domain name as part of a fraudulent scheme to obtain the personal information of Internet users by replicating Complainant’s legitimate website and impersonating Complainant.
Respondent has no rights to or legitimate interests in the domain name.
Respondent knew of Complainant and its rights in the BITTREX at the time it registered the domain name.
Respondent registered and is using the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent 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 trademark for purposes of Policy ¶4(a)(i) by reason of its registration of the mark with the UKIPO. See, for example, Russell & Bromley Limited v. KIM H. SUK, FA 1729773 (Forum June 12, 2017) (finding that registration with the UKIPO is sufficient to establish a UDRP complainant’s rights in a mark under 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.tel> domain name is confusingly similar to Complainant’s BITTREX trademark. The domain name contains the mark in its entirety, with only the addition of the generic Top Level Domain (“gTLD”) “.tel.” 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 Trip Network Inc. v. Alviera, FA 914943 (Forum March 27, 2007) (concluding that the affixation of a gTLD to the mark of another in creating a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
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.tel> 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
“Kevinc Mccal,” 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 Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by the <chevron-europe.com> domain name where the relevant WHOIS information identified the registrant of that domain name only as “Fred Wallace.” 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).
We next observe that Complainant asserts, without objection from Respondent, that Respondent is not using the <bittrex.tel> domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use in that the domain name resolves to a website at which Respondent copies Complainant’s legitimate website in order to pass itself off as Complainant thus to facilitate the perpetration of a fraudulent scheme, commonly called “phishing,” with the objective of acquiring the personal information of unsuspecting Internet users. This employment of the domain name is neither a bona fide offering 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) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy. See Kmart of Mich., Inc. v. Cone, FA 655014 (Forum April 25, 2006) (a panel there finding that a respondent’s attempt to pass itself of as a UDRP complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii) when the respondent used the disputed domain name to present Internet users with a website that was nearly identical to that complainant’s website). See also Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum April 30, 2010):
The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor 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, presumably for its illicit financial gain, Respondent uses the <bittrex.tel> domain name, which we have found to be confusingly similar to Complainant’s BITTREX trademark, in an attempt to pass itself off as Complainant, thus to facilitate its commission of a phishing-scheme fraud upon unsuspecting Internet users. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in registering and using the domain name. See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum December 27, 2017) (finding bad faith under 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.”).
We are also convinced by the evidence that Respondent knew of Complainant and its rights in the BITTREX mark when it registered the offending <bittrex.tel> domain name. This further demonstrates Respondent’s bad faith in registering the domain name. See, for example, 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 knew 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 ¶ 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.tel> domain name be TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: February 7, 2018
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