Bittrex, Inc. v. Protection of Private Person / Privacy Protection
Claim Number: FA1803001778654
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 <ibittrex.org>, registered with Registrar of Domain Names REG.RU LLC.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 23, 2018; the Forum received payment on March 23, 2018.
On March 27, 2018, Registrar of Domain Names REG.RU LLC confirmed by email to the Forum that the <ibittrex.org> 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 ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On March 29, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint in both English and Russian, setting a deadline of April 18, 2018 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@ibittrex.org. Also on March 29, 2018, the Written Notice of the Complaint, notifying Respondent of the email 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 19, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 is a U.S.-based company that operates the world's third-largest cryptocurrency exchange, as measured by assets traded, with more than 1.4 million users in 60 countries. Complainant has used the BITTREX mark for this exchange since February 2014; Complainant owns registrations for the mark in the United States, the United Kingdom, and the European Union.
Respondent registered the disputed domain name <ibittrex.org> in March 2018. The domain name is being used to display a copy of the login page from Complainant's website, prompting users to enter their login credentials; Complainant characterizes this as a fraudulent phishing scheme. Complainant states that Respondent has no license or other authorization to use Complainant's BITTREX mark, and that Respondent is not commonly known by the disputed domain name or any other variant of Complainant's mark.
Complainant contends on the above grounds that the disputed domain name is confusingly similar to a mark in which it has rights; that Respondent has no rights or legitimate interests in the domain name; and that the domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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:
(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.").
Preliminary Issue: Language of Proceeding
The Panel notes that the Registration Agreement is written in Russian. Rule 11(a) provides that the language of this administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise. Complainant requests that the proceeding be conducted in English, noting that the disputed domain name corresponds to the name of an American company and the content of Respondent's website is in English. The Panel also considers the fact that Respondent's actual location and nationality are unknown as a result of Respondent's decision to register the domain name in the name of a privacy registration service. Finally, the Written Notice of the Complaint was served upon Respondent in both English and Russian, and Respondent has made no objection to Complainant's request that the proceeding be conducted in English.
Under the circumstances, the Panel finds it likely that Respondent is conversant and proficient in the English language, has received adequate notice of this proceeding, and has chosen not to participate. The Panel sees no reason to require Complainant to bear the burden and expense of arranging for a Russian translation that is likely unnecessary to afford proper notice to Respondent, and that in any event Respondent is virtually certain to ignore. The Panel decides that English shall be the language of this proceeding.
The disputed domain name <ibittrex.org> corresponds to Complainant's registered BITTREX trademark, adding the letter "I" at the beginning and appending the ".org" top-level domain. These additions are insufficient to distinguish the domain name from Complainant's mark. See, e.g., Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding <ibittrex.com> confusingly similar to BITTREX). The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and its only apparent use has been in connection with a fraudulent phishing scheme. Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name obviously intended to create confusion with Complainant, and is using it in connection with a fraudulent phishing scheme. This conduct evinces bad faith registration and use under paragraphs 4(b)(iii) and 4(b)(iv) of the Policy. See, e.g., Wells Fargo & Co. v. Domain Vault / Domain Vault LLC, FA 1765145 (Forum Feb. 5, 2018) (finding bad faith registration and use under similar circumstances). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ibittrex.org> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: April 20, 2018
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