Bittrex, Inc. v. Veysel Dayan
Claim Number: FA1801001769180
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is Veysel Dayan (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bittrex.global>, registered with NameCheap, Inc.
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 January 26, 2018; the Forum received payment on January 26, 2018.
On January 29, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <bittrex.global> 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 January 30, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 20, 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.global. Also on January 30, 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 21, 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 uses the BITTREX mark to operate 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, effective as of the date of filing of its registration application, May 15, 2017.
Respondent registered the domain name <bittrex.global> on November 1, 2017.
The domain name is substantively identical, and thus 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 does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Rather, Respondent uses the domain name to pass itself off as Complainant in aid of a phishing scheme calculated to obtain sensitive personal information from unsuspecting Internet users.
Respondent has no rights to or legitimate interests in the domain name.
Respondent knew of Complainant’s rights in the BITTREX mark when 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 is identical and 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:
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 trademark authority, the UKIPO. See Russell & Bromley Limited v. KIM H. SUK, FA 1729773 (Forum June 12, 2017) (finding that registration of a trademark with the UKIPO was sufficient to establish rights in that mark on behalf of a UDRP complainant under 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 Turkey). 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 <bittrex.global> domain name is confusingly similar to Complainant’s BITTREX trademark. The domain name contains the mark in its entirety, adding only the generic Top Level Domain (“gTLD”) “.global,” which can be taken to characterize an aspect of Complainant’s business. This alteration of the mark, made in forming the domain name, does not save it from the realm of identity or confusing similarity under the standards of the Policy. See, for example, DD IP Holder LLC v. Phill Aspden, FA 1603215 (Forum April 8, 2015) (finding the domain name <dunkin.coffee> identical to a UDRP complainant's DUNKIN COFFEE mark, because gTLDs that reference goods or services offered under a misappropriated mark may be taken into account in determining the question of confusing similarity).
Under Policy 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the <bittrex.global>
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.global>
domain name, and that Complainant has not 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
“Veysel Dayan,” 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 uses the <bittrex.global> to pass itself off as Complainant online as part of a phishing scheme aimed at obtaining sensitive personal information from unsuspecting Internet users. In the circumstances described in the Complaint, we may comfortably presume that Respondent does this in search of illicit financial gain. This use 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 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 of a challenged domain name, and therefore no rights to or legitimate interests in that domain name within the meaning of Policy ¶¶ 4(c)(i) or (iii), where that respondent used a UDRP complainant’s mark in a domain name that resolved to a website featuring offers for technical support and password recovery services as cover for the solicitation of 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 <bittrex.global> domain name to pass itself off as Complainant online as part of a fraudulent phishing scheme aimed at obtaining sensitive personal information from unsuspecting Internet users. Under Policy ¶ 4(a)(iii), this employment of the domain name is virtually a definition of bad faith in the registration and use of the domain name. See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015):
Respondent uses the … domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).
We are also convinced by the evidence that Respondent knew of Complainant and its rights in the BITTREX mark when Respondent registered the contested <bittrex.global> domain name. This further demonstrates Respondent’s bad faith in registering it. 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.global> domain name be forthwith TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: March 2, 2018
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