Bittrex, Inc v. Bittrex Acc / qwdqwd
Claim Number: FA1803001774907
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is Bittrex Acc / qwdqwd (“Respondent”), Czech Republic.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <xn--bttrex-w8a.com>(the Domain Name’), registered with NameCheap, Inc.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 7, 2018; the Forum received payment on March 7, 2018.
On March 8, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <xn--bttrex-w8a.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 March 13, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 2, 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--bttrex-w8a.com. Also on March 13, 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 April 3, 2018 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
Complainant’s contentions can be summarized as follows:
Complainant operates one of the leading crypto currency exchanges in the world under the BITTREX mark used since February 2014 in relation to its services. It owns registered trademarks for its BITTREX mark in the USA, UK and EU. It owns bittrex.com.
Respondent has used the Domain Name to impersonate Complainant in order to obtain Complainant’s customers’ confidential information. Respondent’s web site is a direct copy of Complainant’s Bittrex web site and prompts consumers to enter their log in credentials
The Domain Name registered in 2017 is a punycode version of Complainant’s BITTREX Mark, differentiated only in practice by the substitution of ‘i’ with ‘ĭ’ and the addition of the gTLD .com, which is insufficient to mitigate this confusing similarity.
Respondent has no license or authorization to use and is not commonly known by the BITTREX mark. Respondent has not used the Domain Name in connection with a bona fide offering of goods and services or a legitimate non- commercial or fair use. Respondent’s fraudulent and illegal activity demonstrates Respondent’s lack of rights and legitimate interests in the Domain Name.
Respondent registered and used the Domain Name to redirect Internet users to a web site that mimics Complainant’s BITTREX web site in order to confuse users into believing Respondent is Complainant or is otherwise affiliated or associated therewith fulfilling Policy 4 (b)(iv).
Respondent’s use to mimic Complainant’s web site shows actual knowledge of Complainant and its business.
The Domain Name has been registered and used in bad faith.
The Proceedings should continue in English as Respondent has facility with the English language and the choice of language in the registration agreement should not put an undue burden on the parties.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant operates one of the leading crypto currency exchanges in the world under the BITTREX mark used since February 2014 in relation to its services. It owns registered trademarks for its BITTREX mark in the USA, UK and EU. It owns bittrex.com.
The Domain Name registered in 2017 has been used for a site mimicking the official site of Complainant inviting users to put in log-in details.
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.
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 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.”).
Language of the Proceedings
The Proceedings should continue in English as Respondent has facility with the English language and the choice of language in the registration agreement should not put an undue burden on the parties.
Identical or Confusingly Similar
The Domain Name consists of a punycode typo-squatted version of Complainant's BITTREX mark (which is registered in the USA, UK and EU with first use recorded as 2014 for financial services) and the gTLD .com. The practical effect is the substitution of an ‘i’ with an accented ‘ĭ’. The Panel agrees that misspellings such as substitution of a letter with a punycode character does not distinguish the Domain Name from Complainant's BITTREX trade mark pursuant to the Policy. See Nike Inc and Nike Innovate CV v Michael restl c/o Dynadot, FA 1703001723952 (Forum May 11, 2017).
The gTLD .com does not serve to distinguish the Domain Name from Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to Complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to the BITTREX mark in which Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
Complainant has not authorized the use of its mark. Respondent has not answered this Complaint and there is no evidence or reason to suggest Respondent is, in fact. commonly known by the Domain Name except for The WhoIS information which appears to be obviously false.
Passing off in furtherance of a phishing scheme is not a bona fide offering of goods and services or a legitimate non-commercial or fair use. See Google Inc. v Prisma Singh/Pandaje Technical Services Pvt Ltd, FA 1660771 (Forum March 17, 2016).
As such the Panel finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Phishing schemes can evince bad faith registration and use. See Klabzuba Oil & Gas, Inc. v LAKHPAT SINGH BHANDARI, FA 1506001625750 (Forum July 17, 2015).
Further Domain Name seeks to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype Complainant’s mark and be taken to Respondent’s site is registration and use in bad faith).
As such, the Panel believes that Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under 4(b)(iv) and 4 (b)(iii) and there is no need to consider further grounds of bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <xn--bttrex-w8a.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: April 4, 2018
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