Bittrex, Inc. v. kasapi trend / kasapikomerc
Claim Number: FA1803001778655
Complainant is Bittrex, Inc. ("Complainant"), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is kasapi trend / kasapikomerc ("Respondent"), "Fontainebleau," USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <bitrextransfer.com> and <bitrextrans.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by email to the Forum that the <bitrextransfer.com> and <bitrextrans.com> domain names are registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the names. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 27, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 16, 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@bitrextransfer.com, and postmaster@bitrextrans.com. Also on March 27, 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 17, 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 names 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 names <bitrextransfer.com> and <bitrextrans.com> in February 2018. The domain name <bitrextransfer.com> has been used to display a copy of the login page from Complainant's website, prompting users to enter their login credentials. Complainant alleges that it is being used as part of a fraudulent phishing scheme to obtain customer information by impersonating Complainant. Complainant asserts that the <bitrextrans.com> domain name is also being used in connection with a similar phishing scheme or other illegal activity. 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 names or any other variant of Complainant's mark.
Complainant contends on the above grounds that the disputed domain names are confusingly similar to a mark in which it has rights; that Respondent has no rights or legitimate interests in the domain names; and that the domain names were registered and are being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that each of the disputed domain names is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and are 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.").
The disputed domain names <bitrextransfer.com> and <bitrextrans.com> both correspond to Complainant's registered BITTREX trademark, omitting a letter "T", adding the generic term "transfer" or its truncated form "trans," and appending the ".com" top-level domain. These alterations are insufficient to distinguish the domain names from Complainant's mark. See, e.g., Bittrex, Inc. v. Domain Administrator / Eastern Valley Ltd. / Satish Kumar / Maritn Disoja, FA 1771090 (Forum Mar. 12, 2018) (finding <bittxcoin.com> confusingly similar to BITTREX); Andrey Ternovskiy dba Chatroulette v. Registration Private, Domains By Proxy, LLC / David Grandpierre, D2017-0456 (WIPO Apr. 21, 2017) (finding <webcamchatroulete.com> confusingly similar to CHATROULETTE); Bama Rags, Inc. v. John Zuccarini d/b/a Cupcake Confidential, FA 94380 (Forum May 8, 2000) (finding <davemathewsband.com> confusingly similar to DAVE MATTHEWS BAND); National Westminster Bank plc v. Adeolu Ajai, D2014-1826 (WIPO Dec. 15, 2014) (finding <natwesttransfer.com> confusingly similar to NATWEST). The Panel finds that each of the disputed domain names 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 names incorporate a typographical variation on Complainant's mark without authorization, and their only apparent use has been in connection with a phishing scheme or similar fraudulent activity. Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names, 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 names.
Finally, Complainant must show that the disputed domain names were registered and are 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 domain names obviously intended to create confusion with Complainant; one and likely both of the domain names have been used in connection with a phishing scheme or other fraudulent activity. 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 names were registered and are 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 <bitrextransfer.com> and <bitrextrans.com> domain names be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: April 20, 2018
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