Bittrex, Inc. v. EVELLINY COSTA SILVA / COSTA SILVA
Claim Number: FA1803001777752
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is EVELLINY COSTA SILVA / COSTA SILVA (“Respondent”), Brazil.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bittrex-i.com>, registered with NameCheap, Inc.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 19, 2018; the Forum received payment on March 19, 2018.
On March 20, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <bittrex-i.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 23, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 12, 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-i.com. Also on March 23, 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 17, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is a U.S.-based company which uses the BITTREX mark to operate one of the leading cryptocurrency exchanges in the world. Complainant has rights in the BITTREX mark based upon its registration of the mark in the United States on January 16, 2018.
Complainant alleges that the disputed domain name is confusingly similar to its BITTREX mark as it incorporates the mark in its entirety and is differentiated only by the addition of “-i” after the mark. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the BITTREX mark in any manner. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent is using the disputed domain name as part of a fraudulent phishing scheme to obtain customer information by impersonating Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. Respondent intentionally attempts to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of the Respondent’s websites. Respondent creates this confusion in furtherance of a phishing scheme to obtain customer information by impersonating Bittrex to fraudulently obtain Complainant customers’ user identification and password credentials and steal from their cryptocurrency accounts, or otherwise engage in illegal activity. Further, Respondent clearly had actual knowledge of Complainant’s rights in the BITTREX mark prior to registering the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns rights in the mark BITTREX dating back to at least January 16, 2018.
The disputed domain name was registered on February 28, 2018.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name is used to pass off as Complainant in order to phish for users’ information. Respondent had actual knowledge of Complainant’s mark.
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 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.”).
The disputed domain name is confusingly similar to the Complainant’s BITTREX mark because it incorporates the mark in its entirety and is differentiated only by the addition of “-i” after the mark. These changes to the mark are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See Bank of America Corporation v. Above.com Domain Privacy, FA 1629452 (Forum Aug. 18, 2015) (finding that the <blankofamerica.com> domain name contains the entire BANK OF AMERICA mark and merely adds the gTLD ‘.com’ and the letter ‘l’ to create a common misspelling of the word ‘bank.’); see also Sports Auth. Mich. Inc. v. Batu 5, FA 176541 (Forum Sept. 23, 2003) (“The addition of a hyphen to Complainant's mark does not create a distinct characteristic capable of overcoming a Policy ¶ 4(a)(i) confusingly similar analysis.”). The Panel therefore finds that the disputed domain name is confusingly similar to the BITTREX mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name per Policy ¶ 4(c)(ii). See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum Jul. 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”). The WHOIS information of record for the disputed domain name lists the registrant as “EVELLINY COSTA SILVA / COSTA SILVA,” and no information on the record indicates that Respondent owns any trademark or service mark rights in the BITTREX name. The Panel therefore finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent’s lack of rights or legitimate interests in the disputed domain name is also demonstrated by its failure to use the name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead the domain name is being used as part of a fraudulent phishing scheme to obtain customer information by impersonating Complainant. Complainant provides screenshots of its own login webpage which is identical to that on the resolving web site. That is, accessing the webpage at the disputed domain name results in the display of a prompt to enter the user’s login credentials, which is an attempt to obtain customers’ confidential information. Using a domain name to pass of as a complainant in order to engage in illegal phishing activity is not a use indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent lacked rights and legitimate interests in a domain name with which it conducted a phishing scheme to procure “Internet users’ personal information”). The Panel therefore finds that Respondent does not have rights or legitimate interests in the <bittrex-i.com> domain name per Policy ¶¶ 4(c)(i) or (iii).
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain names.
Indeed, as already noted, Respondent uses the disputed domain name to pass off as Complainant in furtherance of a phishing scheme to obtain customer information by impersonating Bittrex. This is done in order fraudulently to obtain Complainant customers’ user identification and password credentials and steal from their cryptocurrency accounts, or otherwise engage in illegal activity. Use of a domain name to pass off as a complainant to engage in illegal activity can demonstrate a respondent’s bad faith per 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.”). The Panel therefore finds that Respondent has registered and is using the disputed domain name in bad faith per ¶ 4(b)(iv).
Further, Respondent registered the disputed domain name in bad faith because it had actual knowledge of Complainant’s rights in the BITTREX mark prior to registering the domain name: Respondent prominently displays the BITTREX mark on the resolving web site. Registration and use of an infringing domain name with actual knowledge of a mark holder’s rights can demonstrate bad faith per Policy ¶ 4(a)(iii). 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.”). Thus the Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark and thus registered and is using the disputed domain name in 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 <bittrex-i.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: April 17, 2018
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