Bittrex, Inc. v. john sins / bittrex
Claim Number: FA1801001769182
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is john sins / bittrex (“Respondent”), Illinois, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <xn--bittrx-mva.com>, 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 <xn--bittrx-mva.com> 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 31, 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@xn--bittrx-mva.com. Also on January 31, 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 any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a U.S.-based company which 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 registration application filing date of May 15, 2017.
Respondent registered the domain name <xn--bittrx-mva.com> on or about September 12, 2017.
The domain name is a “punycode” translation of the BITTREX mark with an “ê” (called a circumflex accent mark) substituted for the letter “e” and the “.com” generic Top Level Domain appended at the end.
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 way.
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.
Respondent uses the domain name to pass itself off as Complainant as part of a phishing scheme by which it seeks to obtain 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 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 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 was 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, for example, Russell & Bromley Limited v. KIM H. SUK, FA 1729773 (Forum June 12, 2017) (finding that registration of a mark with the UKIPO is sufficient to establish a UDRP complainant’s rights in that mark under Policy ¶4(a)(i), even if a respondent is located in another country). See also 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.
Moreover, Complainant’s rights in the mark run from the registration application filing date, May 15, 2017, which predates Respondent’s domain name registration on September 12, 2017. See ADP, LLC v. Dennis Shifrin / Streamline, FA 1732114 (Forum June 13, 2017) (finding that “the relevant date for Complainant’s mark is the filing date.”).
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <xn--bittrx-mva.com> domain name is confusingly similar to Complainant’s BITTREX trade mark.
The line from the mark to the domain name is somewhat circuitous. Accepting, and distilling, descriptions widely available online, the situation of the domain name may be described briefly as follows:
Unicode is a computing industry standard for encoding and handling text expressed in most of the world's written languages. ASCII (for American Standard Code for Information Interchange), is a character-encoding scheme which is incorporated within Unicode. ASCII codes represent text in computers, communications equipment and other devices that use text. Punycode is a representation of Unicode which is a translation of the limited ASCII character subset used for Internet host names. Punycode recodes non-compliant characters into a subset of ASCII characters consisting of letters, digits and hyphens, called the Letter-Digit-Hyphen subset. The domain name <xn--bittrx-mva.com> is merely a Punycode translation of the domain name <bittrêx.com> as it would be written in Unicode using ASCII characters if ASCII protocol permitted a circumflex “e” (ie.: “ê”), which it does not.
The domain name, in its untranslated form, is therefore substantively identical to the BITTREX mark, with a circumflex accented “ê” in place of the letter “e,” and the appended 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. See Microsoft Corp. v. Harrington, FA1305319 (Forum March 16, 2010) (finding <bıng.com> [Punycoded as <xn--bng-jua.com>] confusingly similar to BING).
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 <xn--bittrx-mva.com> domain name, and that Complainant has licensed or otherwise authorized Respondent to use the BITTREX mark for any purpose. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as
“john sins / bittrex,” but there is nothing in the record to suggest that that name form was in use at any time before the registration of the domain name only a few scant months ago, on September 12, 2017. On the record before us, therefore, it cannot be said that Respondent has been “commonly known” by the domain name. Because this is so, it also cannot be said that Respondent has acquired rights to or legitimate interest in the domain name within the ambit of Policy ¶ 4(c)(ii). See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that a respondent was not commonly known by a disputed domain name, and so failed to show that it had rights to or legitimate interests in that domain name as provided in Policy ¶ 4(c)(ii), 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 employs the <xn--bittrx-mva.com> domain name to pass itself off as Complainant online as part of a “phishing” scheme aimed at obtaining sensitive personal information from Internet users. In the circumstances described in the Complaint, we may comfortably presume that Respondent does this for 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 within the meaning of 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 under Policy ¶¶ 4(c)(i) or (iii) where that respondent fraudulently used a UDRP complainant’s mark and logo on a resolving website while purporting to offer technical support and password recovery services as a guise for soliciting Internet users’ personal information).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
It is plain from the evidence that Respondent uses the <xn--bittrx-mva.com> domain name to pass itself off as Complainant to further a phishing scheme intended to defraud Internet users. This is a virtual definition of bad faith in the registration and use of the domain name in the contemplation of Policy ¶ 4(a)(iii) . See, for example, Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015):
Respondent uses the … [disputed] … 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 persuaded by the evidence that Respondent knew of Complainant and its rights in the BITTREX mark at the time it registered the <xn--bittrx-mva.com> domain name. This further demonstrates 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 ae panel found that that respondent had knowledge of a UDRP complainant's rights in a mark when it registered 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 the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <xn--bittrx-mva.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: February 28, 2018
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