Bittrex, Inc. v. RICHIE LAI / BITTREX
Claim Number: FA1801001765735
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is RICHIE LAI / BITTREX (“Respondent”), Hungary.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain names at issue are <bitreex.com> and <bittrex.click>, registered with OnlineNIC, Inc.
The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 5, 2018; the Forum received payment on January 5, 2018.
On January 10, 2018, OnlineNIC, Inc. confirmed by e-mail to the Forum that the <bitreex.com> and <bittrex.click> domain names are registered with OnlineNIC, Inc. and that Respondent is the current registrant of the names. OnlineNIC, Inc. has verified that Respondent is bound by the OnlineNIC, 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 January 17, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 6, 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@bitreex.com and postmaster@bittrex.click. Also on January 17, 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 February 9, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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
On information and belief, Complainant alleges that the Respondents of the Disputed Domains are both the same person or are under common ownership or control.
Complainant bases this allegation on the fact that both domains are registered under the same Respondent name (though this is a false name), through the same registrar, and within days of each other (as shown in Section 5(a) below). See UDRP Rule 3(c) (providing that a complaint may relate to more than one domain name, provided the disputed domain names are held by the same registrant); Thomson Reuters Global Resources v. Richard Marsh et al, FA FA1308001516146 (Forum Oct. 2, 2013) (finding complainant sufficiently alleged that the disputed domain names were effectively controlled by the same entity where the domains were used to display similar content, and registrant organization was listed under same name “intach”).
Trademark/Service Mark Information:
This Complaint is based on Complainant’s BITTREX trademark, which solely and exclusively identifies Complainant. Complainant is a U.S.-based company that operates one of the leading cryptocurrency exchanges in the world under the BITTREX mark.
Complainant began using the BITTREX mark in U.S. commerce in connection with its cryptocurrency exchange in February of 2014, and has continuously used the BITTREX mark with its services since that date. See Declaration of Bill Shihara in support of this Complaint. Today, Complainant’s cryptocurrency exchange is the third largest cryptocurrency exchange in the world, as measured by assets traded. Complainant’s cryptocurrency exchange has more than 1,400,000 users based in 60 countries throughout the world. In addition, 200 digital tokens are currently being traded on Bittrex, amounting to a trading volume of 500,000,000 US dollars. Id.
Complainant has spent substantial time, effort and money promoting the BITTREX mark in the U.S. and worldwide. As a result, the BITTREX mark has enjoyed widespread international recognition and consumers associate the BITTREX brand exclusively with Complainant. For example, when conducting a Twitter search for “BITTREX,” all of the search results revealed in the initial eleven pages of the search refer to Complainant.
The media also recognizes Complainant’s exclusive rights in the BITTREX trademark-- specifically, every current news article disclosed in a Google search for “BITTREX” refers to Complainant.
Given Complainant’s (a) more than three years of continuous use of the BITTREX trademark; (b) its extensive marketing and advertising expenditures to promote the BITTREX trademark; (c) its extensive media coverage; and (d) consumers’ recognition of Complainant’s exclusive rights in the BITTREX mark, Complainant has clearly established its common law trademark rights in the BITTREX mark, which date back to early 2014. Previous panels have consistently held that such evidence is sufficient to establish trademark rights in a mark under Policy ¶4(a)(i). See SeekAmerica Networks Inc. v. Masood, D2000-0131 (WIPO Apr. 13, 2000) (finding that the Rules do not require that the complainant's trademark or service mark be registered by a government authority or agency for such rights to exist); BroadcastAmerica.com, Inc. v. Quo, DTV2000-0001 (WIPO Oct. 4, 2000) (finding that the complainant has common law rights, given extensive use of that mark to identify the complainant as the source of its services over the Internet, and evidence that there is wide recognition with the mark among Internet users as to the source of its services); Kahn Dev. Co. v. RealtyPROshop.com c/o Carl Krause, FA 568350 (Forum Jun. 23, 2006) (finding common law rights in multi-million dollar VILLAGE AT SANDHILL real estate development); see also Pereira v. Otero, FA 1483614 (Forum March 14, 2013) (common law trademark rights alone are sufficient under the Policy); HR Commodities LLC v. Rob Harper, D2007-0153 (WIPO April 9, 2007) (“It is well-settled that the Policy encompasses both registered and common law marks.”).
In addition to its common law rights in BITTREX, Complainant also owns trademark registrations in the U.K. (Reg. No. UK00003231077) and European Union (Reg. No. 016727109) as well as a number of pending applications to register BITTREX worldwide, including U.S. Application No. 87333760.
Complainant currently owns a registration for the domain name <bittrex.com> (the “Bittrex Domain”). Complainant began using the Bittrex Domain in connection with its business in 2014 and has continuously done so since that time. Complainant’s website, which it uses in connection with its business, prominently displays the BITTREX mark and is located at the Bittrex Domain (the “Bittrex Website”).
FACTUAL AND LEGAL GROUNDS
This Complaint is premised on Respondent’s malicious and dangerous use of the bitreex.com Disputed Domain to impersonate Complainant in connection with a phishing scam in order to obtain Complainant customers’ confidential information. Specifically, Respondent’s website is a clone of the Bittrex Website, and prompts consumers to enter their login credentials. Compare Screenshots of the Bittrex Website with screenshots of the website operated at the Disputed Domain, which are attached to the Declaration of Patchen Haggerty. Complainant files this Complaint to transfer the Disputed Domains.
[a.] The Disputed Domain is Confusingly Similar to Complainant’s BITTREX Trademark
[i.] The Disputed Domain, bitreex.com is confusingly similar to Complainant’s BITTREX trademark because it is a deliberate misspelling of Complainant’s BITTREX mark and is meant to create an association in the mind of an Internet user with Complainant. See MTS Inc. d/b/a Tower Records v. John Zuccarini d/b/a Cupcake Patrol, FA0107000098343 (Forum Sept. 17, 2001) (holding that domain name that is misspelled version of Complainant’s mark is confusingly similar). Likewise the Disputed Domain, bittrex.click, is confusingly similar to Complainant’s BITTREX trademark because it wholly incorporates the BITTREX mark and is differentiated only by the “.click” gTLD, which is insufficient to mitigate this confusing similarity. See Bank of Am. Corp. v. McCall, FA 135012 (Forum Dec. 31, 2002) (holding that attaching a gTLD is “unable to create a distinction capable of overcoming a finding of confusing similarity”).
Thus, the Disputed Domains are confusingly similar to Complainant’s registered BITTREX mark under Policy ¶4(a)(i).
[ii.] Respondent registered bitreex.com on October 22, 2017 and bittrex.click on October 18, 2017, whereas Complainant first used the BITTREX mark in connection with its business in 2014. Additionally, Complainant filed its earliest trademark application in February 2017. Complainant’s rights in the BITTREX mark predate the registration date of the Disputed Domain and Complainant clearly has priority in the BITTREX trademark.
[b.] The Respondents Have No Rights or Legitimate Interests in the Disputed Domains
[i.] A complainant must show that a respondent has “no rights or legitimate interests in respect of the domain name.” UDRP Rule 3(b)(ix)(2). Here, Respondent has no license or authorization to use the BITTREX mark and is not commonly known by the Disputed Domain or any variant of the BITTREX mark. See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the emitmortgage.com domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name); Tercent Inc. v. Yi, FA 139720 (Forum Feb. 10, 2003) (stating that “nothing in [the respondent’s] WHOIS information implies that [the respondent] is ‘commonly known by’ the disputed domain name” is one factor in determining that Policy ¶4(c)(ii) does not apply).
[ii.] In addition, Respondent has not and is not using the Disputed Domains in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the Disputed Domain bitreex.com as part of a fraudulent phishing scheme to obtain customer information by replicating the Bittrex Website and impersonating or passing him/herself off as Bittrex. Respondent’s fraudulent and illegal activity demonstrates Respondent’s lack of legitimate interest in the Disputed Domain. See, e.g., Bechtel Grp., Inc. v. Dudley, FA 1636223 (Forum Oct. 12, 2015) (noting that it is well-settled that “the use of a confusingly similar domain name in a fraudulent e-mail scheme” and/or “to pass [one]self off as the complainant,” amounts “to a lack of rights or legitimate interests”); Allianz of Am. Corp. v. Bond, FA 690796 (Forum June 12, 2006) (holding that the respondent’s use of the <allianzcorp.biz> domain name to fraudulently acquire the personal and financial information of Internet users seeking complainant’s financial services was not a bona fide offering of goods or services or a legitimate noncommercial or fair use); Kmart of Mich., Inc. v. Cone, FA 655014 (Forum Apr. 25, 2006) (finding the respondent’s attempt to pass itself off as the complainant was not a bona fide offering of goods or services or a legitimate noncommercial or fair use where the respondent used the domain to present users with a website that was nearly identical to the complainant’s website); Blackstone TM L.L.C. v. Mita Ireland Ltd. c/o Michael Boutenko, FA 1314998 (Forum Apr. 30, 2010) (A respondent’s use of a domain name to “phish” for users’ information is was neither a bona fide offering of goods or services or a legitimate noncommercial or fair use).
Likewise, Respondent’s use of the bittrex.click Disputed Domain, which is currently not resolving to content, is not a bona fide offering of goods or services or a legitimate or noncommercial fair use. Previous panels have held that inactive holding of a domain name can indicate a lack of rights or legitimate interests. See, e.g., The Toronto-Dominion Bank v. john jones/joh jones/batti picka/Jonathan Thomas/Jt inc., FA150400165346 Forum Jun. 25, 2015) (holding respondent’s use of disputed domain to resolve to blank pages is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶4(c)(i) and 4(c)(iii)); Am. Home Prods. Corp. v. Malgioglio, D2000-1602 (WIPO Feb. 19, 2001) (finding no rights or legitimate interests in the domain name <solgarvitamins.com> where the respondent merely inactively held the domain name).
[iii.] Therefore, Respondents have no rights or legitimate interests in the Disputed Domains.
[c.] The Disputed Domains Were Registered and Are Used in Bad Faith
[i.] Respondents’ actions make clear that the Disputed Domains were registered and are being used in bad faith. Policy ¶4(b). Specifically, Respondents registered and uses the Disputed Domain bitreex.com to direct Internet users to a website that mimics the Bittrex Website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant. On information and belief, Respondents are using the Disputed Domain to obtain Complainant’s customers’ credentials through a phishing scam, and using the credentials to steal from customers’ cryptocurrency accounts or otherwise illegally use account information. Prior panels have held that use of a domain name in connection with a phishing scam to intentionally create a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of a complainant constitutes bad faith. Policy ¶4(b)(iv). See, e.g., Yahoo! Inc. v. Dank, FA 203169 (Forum Dec. 6, 2003) (finding respondent’s use of the disputed domain name for an information theft scam and illegal commercial gain constituted bad faith); Wells Fargo & Co. v. Above.com Domain Privacy, FA 1592062 (Forum Jan. 4, 2015) (finding bad faith in creating a false association with complainant and operating a phishing scheme to obtain personal information); Smiths Grp. plc v. Snooks, FA 1372112 (Forum Mar. 18, 2011) (“Respondent disrupts Complainant’s business by using the Domain Name to pass itself off as Complainant for Respondent’s fraudulent commercial gain.”); Regents of the Univ. of Mich. v. VistaPrint Tech. Ltd., FA 1460764 (Forum Oct. 5, 2012) (“The Panel finds that Respondent’s fraudulent attempts to pass itself off as Complainant constitute evidence of bad faith registration and use.”); Goodwin Proctor LLP v. Gayle Fandetti, FA1706001738231 (“Typosquatting itself is evidence of relevant bad faith registration and use”); Diners Club Int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name which entirely incorporates a mark with additional letter(s) is registration and use in bad faith).
[ii.] Respondents’ use of the confusingly similar name bitreex on its fraudulent website and the fact that Respondent created a clone of Complainant’s website shows that Respondent had actual knowledge of Complainant’s rights in the BITTREX mark prior to registering the Disputed Domain, and this is evidence of bad faith. See Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration); Brownell Travel, Inc. v. Troy Haas, FA 1589137 (Forum Dec. 20, 2014).
[iii.] Respondents’ use of the BITTREX mark in connection with confusingly similar domain names and the cloned website at bitreex.com creates a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the Disputed Domain. Respondent’s attempt to attract Internet users for commercial gain associated with the phishing scam is also evidence of bad faith under Policy ¶4(b)(iv). See Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”).
[iv.] Respondents’ use of the Registrant Name “Richie Lai” and Organization Name “Bittrex” as to both Disputed Domains is further evidence of bad faith. Respondents have deliberately misrepresented their identity in order to avoid criminal prosecution for the illegal phishing scam they have perpetrated against Internet users and Complainant’s customers. This is also strong evidence of bad faith.
[v.] In addition, Respondents are offering the Disputed Domain bitreex.com for sale for $10,000, which is also evidence of bad faith. An offer to sell a domain name in excess of the Respondent’s out-of-pocket costs constitutes direct evidence of bad faith registration and use under Policy ¶4(b)(i). See Hess Corporation, FA1608001689684 (citing George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007) (concluding that the respondent registered and was using the <gwbakeries.mobi> domain name in bad faith according to Policy ¶4(b)(i) where it offered it for sale for far more than its estimated out- of-pocket costs it incurred in initially registering the disputed domain name)).
[v.] Therefore, Respondents registered and are using the Disputed Domains in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain names registered by Respondent are 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 names; and
(3) the domain names were registered and are being used 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 Complainant prove the following three elements to obtain an order cancelling or transferring a domain name:
(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.”).
Preliminary Issue: Multiple Respondents
Complainant claims the entities who control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” The registrants of the domain names are the same person or entity because they both use the same false name; they both use the same registrar; and were both registered within days of each other.
In the absence of any contradicting evidence from Respondent, the Panel finds this sufficiently convincing there is only one respondent.
Complainant claims rights in the BITTREX mark due to its registration of the mark with the United Kingdom Intellectual Property Office (“UKIPO”) and the European Union intellectual Property Office (“EUIPO”) (UKIPO—Reg. No. UK00003231077, registered Oct. 6, 2017, effective date May 15, 2017; EUIPO—Reg. No. 016727109, registered Oct. 13, 2017, filed May 15, 2017). Registration with a governmental trademark agency, such as the UKIPO or the EUIPO, is sufficient to prove Policy ¶4(a)(i) rights in a mark. See Astute, Inc. v. Raviprasath C / Astute Solution Pvt Ltd, FA 1546283 (Forum Apr. 9, 2014) (finding that registrations with two major trademark agencies is evidence enough of Policy ¶4(a)(i) rights in the ASTUTE SOLUTIONS mark.); see also Russell & Bromley Limited v. KIM H. SUK, FA 1729773 (Forum June 12, 2017) (Registration with the UKIPO (or any other governmental authority) is sufficient to establish rights in a mark under Policy ¶4(a)(i), even if Respondent is located in another country.”). Complainant has established sufficient rights to the BITTREX mark under Policy ¶4(a)(i).
Complainant claims Respondent’s <bitreex.com> and <bittrex.click> domain names are identical or confusingly similar to Complainant’s mark because one of them misspells the mark and adds the gTLD “.com” and the other merely adds the gTLD “.click” after incorporating Complainant’s complete mark. Similar changes in registered marks have failed to sufficiently distinguish a domain name for the purposes of Policy ¶4(a)(i). See Acme Lift Company, L.L.C. v. VistaPrint Technologies Ltd, FA 1607039 (Forum Apr. 11, 2015) (stating, “Where a respondent has created a domain name in an effort to visually deceive Internet users via a simple misspelling (and when such misspellings are visually similar to the mark), a finding of confusing similarity under Policy ¶4(a)(i) is appropriate.”). A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶4(a)(i) analysis because domain name syntax requires TLDs. See also Tupelo Honey Hospitality Corporation v. King, Reggie, FA 1732247 (Forum July 19, 2017) (“Addition of a gTLD is irrelevant where a mark has been fully incorporated into a domain name and the gTLD is the sole difference.”). The <bitreex.com> domain name is confusingly similar, and the <bittrex.click> domain name is identical, to Complainant’s BITTREX mark under Policy ¶4(a)(i).
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant must first make a prima facie case Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii). Then the burden shifts to Respondent to show it has rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first 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, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant claims Respondent has no rights or legitimate interests in the <bitreex.com> and <bittrex.click> domain names. Where there is no response, relevant evidence includes the WHOIS and any other claims by a complainant regarding the nature of its relationship with a respondent. See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). The WHOIS identifies “RICHIE LAI / BITTREX” as the registrant for both domain names. Absent information in the record to the contrary (and there is none in this case), the WHOIS information and common sense allow the Panel to decide Respondent is not commonly known by the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). Respondent has never been affiliated with Complainant, has never been known by the disputed domain names prior to their registration, and Complainant has not given Respondent permission to use the disputed domain names. A quick search of the Nevada Secretary of State’s on-line database discloses no entity by the name “bitreex.” Respondent is not commonly known by the <bitreex.com> and <bittrex.click> domain names under Policy ¶4(c)(ii).
Complainant claims Respondent does not use the <bitreex.com> domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use because Respondent attempts to pass itself off as Complainant to further a phishing scheme to obtain information from users. This is a failure to make a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶4(c)(i) or (iii). See Google Inc. v. Pritam Singh / Pandaje Technical Services Pvt Ltd., FA 1660771 (Forum March 17, 2016) (agreeing that respondent has not shown any bona fide offering of goods or services or any legitimate noncommercial or fair use under Policy ¶¶4(c)(i) or (iii) as the respondent used the complainant’s mark and logo on a resolving website containing offers for technical support and password recovery services, and soliciting Internet users’ personal information). Respondent fails to use the <bitreex.com> domain name in connection with any bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶4(c)(i) or (iii).
Complainant claims the <bittrex.click> domain name does not have an associated web site. While there are other possible ways to use a domain name (such as an email server or an ecommerce back-end), Respondent does not make a claim to do so. Failure to make active use of a confusingly similar domain name is evidence of a lack of a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶4(c)(i) or (iii). See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶4(c)(iii).”). Respondent fails to actively use the <bittrex.click> domain name. Respondent lacks rights and legitimate interests in the same under Policy ¶¶4(c)(i) and (iii).
The Panel finds Policy ¶4(a)(ii) satisfied.
Complainant claims Respondent registered and uses the <bitreex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website. This is done to phish for Complainant’s users’ login information to ultimately take their cryptocurrency. Using a disputed domain name that trades upon the goodwill of a complainant for commercial gain is evidence of bad faith under 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.”). Respondent attempts to commercially benefit off Complainant’s mark. This constitutes bad faith registration and use of the <bitreex.com> domain name under Policy ¶4(b)(iv).
Complainant claims Respondent uses the <bitreex.com> domain name to pass off as Complainant to further a phishing scheme intended to defraud Complainant’s users. Phishing schemes are evidence of bad faith registration and use. See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶4(a)(iii).”). Respondent attempts to pass itself off as Complainant to phish for customer information, and thus registered and uses the <bitreex.com> domain name in bad faith pursuant to Policy ¶4(a)(iii).
Complainant claims Respondent had actual knowledge of Complainant’s BITTREX mark at the time it registered the <bitreex.com> domain name. Actual knowledge of a complainant’s rights in a mark prior to registering an identical or confusingly similar domain name is evidence of bad faith under Policy ¶4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). Respondent must have had actual knowledge of the mark based on Respondent’s use of the BITTREX mark on its fraudulent website. Respondent had had actual knowledge of Complainant’s mark, demonstrating bad faith under Policy ¶4(a)(iii).
When someone registers a domain name, they must provide accurate WHOIS information. The <bitreex.com> domain name was registered using Complainant’s street address in Las Vegas (and an invalid telephone number of 10000000). In the commercial context, failing to provide accurate WHOIS information raises the rebuttable presumption of bad faith registration and use. Respondent has done nothing to rebut that presumption. Therefore, this Panel must find bad faith regarding the <bitreex.com> domain name on this ground alone.
Complainant does not explicitly address how Respondent registered and used the <bittrex.click> domain name in bad faith under Policy ¶4(a)(iii). However, the Panel will presume certain obvious implied arguments rather than remand the matter to Complainant to state the obvious. Respondent had actual knowledge of Complainant’s BITTREX mark at the time it registered the <bittrex.click> domain name (the two domain names were registered within four days of each other). Once again, actual knowledge of a complainant’s rights in a mark prior to registering an identical domain name is evidence of bad faith under Policy ¶4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). Respondent had actual knowledge of Complainant’s mark, demonstrating bad faith under Policy ¶4(a)(iii) regarding the <bittrex.click> domain name.
Complainant claims Respondent’s the <bittrex.click> domain name does not have a resolving website. Using a domain name to resolve to an inactive website (or no website at all) indicates bad faith registration and use. See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶4(a)(iii).”). Respondent registered and used the <bittrex.click> domain name in bad faith under Policy ¶4(a)(iii).
The Panel finds Policy ¶4(a)(iii) satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.
Accordingly, it is Ordered the <bitreex.com> and <bittrex.click> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Monday, February 19, 2018
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