DECISION

 

Bittrex, Inc. v. Protection of Private Person / Privacy Protection

Claim Number: FA1802001770545

PARTIES

Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA.  Respondent is Protection of Private Person / Privacy Protection (“Respondent”), Russia.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <bitterx.ru.com>, registered with Registrar of Domain Name REG.RU LLC.

 

PANEL

The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.

 

John J. Upchurch as Panelist.

 

PROCEDURAL HISTORY

Complainant participated in the mandatory CentralNic Mediation, and the mediation process was terminated on March 1, 2018.

 

Complainant submitted a Complaint to the Forum electronically on February 5, 2018; the Forum received payment on February 5, 2018.

 

On March 06, 2018, Registrar of Domain Names REG.RU LLC confirmed by e-mail to the Forum that the <bitterx.ru.com> domain name is registered with Registrar of Domain Names REG.RU LLC and that Respondent is the current registrant of the name.  Registrar of Domain Names REG.RU LLC has verified that Respondent is bound by the Registrar of Domain Names REG.RU LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the CentralNic Dispute Resolution Policy (the “CDRP Policy”).

 

On March 6, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 26, 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@bitterx.ru.com.  Also on March 6, 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 March 30, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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 to the CDRP 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 CDRP Policy, CDRP 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.   Complainant

1.    Complainant, Bittrex, Inc., is a U.S. based company that operates one of the leading cryptocurrency exchanges in the world under the BITTREX mark. Complainant registered the BITTREX mark with multiple registries including the European Union Intellectual Property Office (“EUIPO”) (e.g. Reg. No. 016727109, registered Oct. 13, 2017) and the United States Patent Office (“USPTO”) (e.g. Reg. No. 5,380,786, registered on Jan. 16, 2018). See Compl. Ex. E2, E3. Respondent’s <bitterx.ru.com> domain name is confusingly similar as it incorporates Complainant’s entire BITTREX mark, merely transposing the letters “e” and “r” in the mark.

2.    Respondent has no rights or legitimate interests in the <bitterx.ru.com> domain name. Respondent is not commonly known by the BITTREX mark, nor is Respondent sponsored or affiliated with Complainant. Complainant has not given Respondent permission to use the mark. Additionally, Respondent doesn’t use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Respondent’s resolving webpage is designed to impersonate Complainant in order to phish for personal information belonging to Complainant’s users.

 

3.    Respondent registered or uses the <bitterx.ru.com> domain name in bad faith. Respondent attempts to pass off as Complainant for Respondent’s commercial gain. Respondent uses the disputed domain name to host a phishing scheme. Respondent had actual knowledge of Complainant’s mark when it registered the <bitterx.ru.com> domain name.

 

 Respondent

1.    Respondent failed to submit a Response in this proceeding.

 

FINDINGS

1.    Respondent’s <bitterx.ru.com> domain name is confusingly similar to Complainant’s BITTREX mark.

2.    Respondent does not have any rights or legitimate interests in the <bitterx.ru.com> domain name.

3.    Respondent registered or used the <bitterx.ru.com> domain name in bad faith.

 

DISCUSSION

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:

 

(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.

 

The CDRP also requires that Complainant have participated in a CentralNic Mediation, and that said mediation must have been terminated prior to the consideration of the Complaint.

 

Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the CDRP Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.

 

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.”).

 

Identical and/or Confusingly Similar

Complainant asserts rights in the BITTREX mark based upon registration with the EUIPO (e.g. Reg. No. 016727109, registered Oct. 13, 2017) and the USPTO (e.g. Reg. No. 5,380,786, registered on Jan. 16, 2018). See Compl. Ex. E2, E3. Registration of a mark with two trademark organizations is sufficient to establish rights in said mark per Policy ¶ 4(a)(i). 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.). Therefore, the Panel finds Complainant has rights in the BITTREX mark per Policy ¶4(a)(i).

 

Next, Complainant argues that Respondent’s <bitterx.ru.com> domain name is confusingly similar as it incorporates Complainant’s entire BITTREX mark, merely transposing the letters “e” and “r” in the mark. Similar changes to a mark have been found insufficient to defeat a test for confusing similarity pursuant to Policy ¶ 4(a)(i). See RetailMeNot, Inc. v. Domain Admin / Private Registrations Aktien Gesellschaft, FA 1625879 (Forum Aug. 6, 2015) (finding confusing similarity while Respondent merely transposed the letters “a” and “t” in the RETAILMENOT mark in crafting the <reatilmenot.com> domain name). Therefore, the Panel finds that Respondent’s domain name is confusingly similar to Complainant’s BITTREX mark pursuant to Policy ¶ 4(a)(i). 

 

Rights or Legitimate Interests

Complainant must first make a prima facie case that 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 does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).

 

Complainant argues that Respondent has no rights or legitimate interests in the <bitterx.ru.com> domain name, as Respondent is not commonly known by the disputed domain name or licensed to use the BITTREX mark. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.). The WHOIS information of record identifies Respondent as “Protection of Private Person / Privacy Protection.”  The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent is not commonly known by the disputed domain name.

 

Additionally, Complainant argues that Respondent fails to make a bona fide ­offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name as, instead, Respondent uses the <bitterx.ru.com> domain name to perpetrate a phishing scheme. Using a disputed domain name to conduct a phishing scheme is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See Virtu Financial Operating, LLC v. Lester Lomax, FA1409001580464 (Forum Nov. 14, 2014) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii) where the respondent was using the disputed domain name to phish for Internet users personal information by offering a fake job posting on the resolving website). Complainant argues Respondent uses the <bitterx.ru.com> domain name as part of a fraudulent phishing scheme to obtain customer information by replicating Complainant’s website and impersonating Complainant. See Compl. Ex. F1. Therefore, the Panel finds that such use is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).

 

 

Registration or Use in Bad Faith

Complainant argues that Respondent registered or uses the <bitterx.ru.com> in bad faith as Respondent attempts to pass off as Complainant for Respondent’s commercial gain. The non-exclusive nature of Policy ¶ 4(b) allows for consideration of additional factors in an analysis for bad faith pursuant to Policy ¶ 4(a)(iii). See Digi Int’l Inc. v. DDI Sys., FA 124506 (Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith). Use of a disputed domain name to pass off as a complainant for a respondent’s commercial  gain evinces a finding of bad faith pursuant to Policy ¶ 4(a)(iii). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 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.”). Complainant asserts Respondent uses the disputed domain name to direct Internet users to a website that directly copies Complainant’s website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant. See Compl. Ex. F1. Therefore, the Panel finds that Respondent registered or uses the <bitterx.ru.com> domain name in bad faith per Policy ¶ 4(a)(iii).

 

Next, Complainant contends Respondent uses the disputed domain name to host a phishing scheme. Use of a disputed domain name in connection with a phishing scheme does not represent good faith per Policy ¶ 4(a)(iii). 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).”). Complainant contends Respondent hosts a website that is visually identical to that hosted by Complainant in an attempt to gain the personal login information of Internet users that mistake Respondent’s resolving website for Complainant’s own. See Compl. Ex. F1. The Panel agrees with Complainant and find Respondent registered or used the disputed domain name in bad faith per Policy ¶ 4(a)(iii).

 

Finally, Complainant argues that Respondent registered the <bitterx.ru.com> domain name with actual knowledge of Complainant’s rights in the BITTREX mark. Registering a domain name with knowledge of another’s rights therein is indicative of bad faith under Policy ¶4(a)(iii). See Norgren GmbH v. Domain Admin / Private Registrations Aktien Gesellschaft, FA1501001599884 (Forum Feb. 25, 2014) (holding that the respondent had actual knowledge of the complainant and its rights in the mark, thus demonstrating bad faith registration under Policy ¶ 4(a)(iii), where the respondent was using the disputed domain name to purposely host links related to the complainant’s field of operation); see also 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). Here, Complainant argues that Respondent’s knowledge of Complainant’s mark prior to registering <bitterx.ru.com> is apparent from the notoriety of Complainant’s trademark and from Respondent’s use of the domain name to host a look-alike website which features Complainant’s mark. See Compl. Ex. F, F1. Therefore, the Panel finds that Respondent registered the <bitterx.ru.com> domain name with actual knowledge of Complainant’s BITTREX mark—bad faith per Policy ¶4(a)(iii).

 

DECISION

Having established all three elements required under the CDRP Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <bitterx.ru.com> domain name be TRANSFERRED from Respondent to Complainant.

 

John J. Upchurch, Panelist

Dated:  April 13, 2018