Bittrex, Inc. v. Eduard Saveliev / Private Person / Protection of Private Person / Privacy Protection
Claim Number: FA1804001781149
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondents are Eduard Saveliev / Private Person, France, and Protection of Private Person / Privacy Protection, Russia (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <bittrrex.co> and <bittrrex.org>, registered with Key-Systems GmbH and 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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 10, 2018; the Forum received payment on April 10, 2018.
On April 12, 2018, Registrar of Domain Names REG.RU LLC confirmed by e-mail to the Forum that the <bittrrex.org> domain name is registered with Registrar of Domain Names REG.RU LLC and that Respondent is the current registrant of the name. On April 13, 2018, Key-Systems GmbH confirmed by e-mail to the Forum that the <bittrrex.co> is registered with Key-Systems GmbH and that Respondent is the current registrant of the name. Key-Systems GmbH and Registrar of Domain Names REG.RU LLC has verified that Respondent is bound by the Key-Systems GmbH and 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 April 17, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 7, 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@bittrrex.co, postmaster@bittrrex.org. Also on April 17, 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 May 11, 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 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.
Preliminary Issue: Language of the Proceedings
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Russian language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Preliminary Issue: Multiple Respondents
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Complainant bases this allegation on the fact that both domains were registered on the same day and the disputed domain names are identical to one another (i.e., they both use the misspelling of Complainant’s trademark “BITTRREX” and attach a gTLD, and resolve to identical content).
The Panel finds the domain names are commonly owned/controlled by a single Respondent who is using multiple aliases.
A. Complainant
1. Complainant, Bittrex, Inc., is a U.S.-based company which uses the BITTREX mark to operate one of the leading cryptocurrency exchanges in the world. See Amend. Compl. Ex. D. Complainant has rights in the BITTREX mark based upon its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 5,380,786, registered Jan. 16, 2018). See Amend. Compl. Ex. E3. Respondent’s <bittrrex.co> and <bittrrex.org> domain names are confusingly similar to Complainant’s BITTREX mark as both domain names incorporate the mark in its entirety and are differentiated only by the addition of an extra “r” and the “.co” and “.org” generic top-level domain names (“gTLD”).
2. Respondent has no rights or legitimate interests in the <bittrrex.co> and <bittrrex.org> domain names. Respondent is not licensed or authorized to use Complainant’s BITTREX mark and is not commonly known by the disputed domain names. Additionally, Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain names to pass off as Complainant as a part of a fraudulent phishing scheme to obtain customer information. See Amend. Compl. Exs. F1-F3.
3. Respondent registered and is using the <bittrrex.co> and <bittrrex.org> domain names in bad faith. Respondent creates a likelihood of confusion at the disputed domain name by impersonating Complainant to fraudulently obtain Complainant customers’ user identification and password credentials through a phishing scheme, or otherwise engage in illegal activity. See Amend. Compl. Exs. F1-F3. Further, Respondent clearly had actual knowledge of Complainant’s rights in the BITTREX mark prior to registering the disputed domain names.
B. Respondent
1. Respondent failed to submit a Response in this proceeding.
1. Respondent’s <bittrrex.co> and <bittrrex.org> domain names are confusingly similar to Complainant’s BITTREX mark.
2. Respondent does not have any rights or legitimate interests in the <bittrrex.co> and <bittrrex.org> domain names.
3. Respondent registered or used the <bittrrex.co> and <bittrrex.org> domain names 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.”).
Complainant claims rights in the BITTREX mark based upon registration of the mark with the USPTO (e.g. Reg. No. 5,380,786, registered Jan. 16, 2018). See Amend. Compl. Ex. E3. Registration of a mark with the USPTO is sufficient to establish rights in that mark under Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Therefore, the Panel holds that Complainant’s registration of the BITTREX mark with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4(a)(i).
Next, Complainant argues Respondent’s <bittrrex.co> and <bittrrex.org> domain names are confusingly similar to the Complainant’s BITTREX mark because the domain names incorporate the mark in its entirety and is differentiated only by the addition of an extra “r” and a “.co” and “.org” gTLD. 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.’). The Panel notes that the “.co” is actually a country code top level domain (“ccTLD”) rather than a gTLD as Complainant alleges. Additions of a ccTLD are irrelevant under Policy ¶ 4(a)(i). See CloudFlare, Inc. v. [Registrant], FA 1624251 (Forum Aug. 1, 2015) (holding, “The inclusion of a ccTLD does not alleviate the similarity between a mark and a disputed domain name as per Policy ¶ 4(a)(i).”). The Panel therefore determines the <bittrrex.co> and <bittrrex.org> domain names are confusingly similar to the BITTREX mark per Policy ¶ 4(a)(i).
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 <bittrrex.co> and <bittrrex.org> domain names, as Respondent is not commonly known by the disputed domain names. 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 <bittrrex.co> domain name lists the registrant as “Eduard Saveliev / Private Person,” and for the <bittrrex.org> domain name lists the registrant as “Protection of Private Person / Privacy Protection.” See Amend. Compl. Exs. A1-A2. There is no information on the record to indicate that Respondent owns any trademark or service mark rights in the BITTREX name. Therefore, the Panel finds that Respondent is not commonly known by the <bittrrex.co> and <bittrrex.org> domain names under Policy ¶ 4(c)(ii).
Additionally, Complainant argues Respondent’s lack of rights or legitimate interests in the <bittrrex.co> and <bittrrex.org> domain names as demonstrated by its failure to use the names in connection to a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Complainant contends Respondent uses the domain names to impersonate Complainant as part of a fraudulent phishing scheme to obtain customer information. Using a domain name to pass off as a complainant in furtherance of an 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”). Complainant provides screenshots of its own login webpage as well as that on Respondent’s websites, which show identical content. See Amend. Compl. Exs. F1-F3. The Panel therefore determines that Respondent does not have the rights or legitimate interests in the <bittrrex.co> and <bittrrex.org> domain names per Policy ¶¶ 4(c)(i) or (iii).
Complainant contends Respondent registered and is using the <bittrrex.co> and <bittrrex.org> domain names in bad faith as Respondent attempts to impersonate Complainant as part of a phishing scheme. Passing off in furtherance of a phishing scheme may be evidence of bad faith under Policy ¶ 4(b)(iv). 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 provides screenshots of the resolving webpages that prompts consumers to enter their login credentials, which Complainant claims Respondent users to obtain customers’ confidential information. See Amend. Compl. Exs. F1-F3. The Panel therefore finds that Respondent has registered and used the domain names in bad faith per Policy ¶ 4(b)(iv).
Finally, Complainant contends Respondent registered the <bittrrex.co> and <bittrrex.org> domain names in bad faith because it had actual knowledge of Complainant’s rights in the BITTREX mark prior to registering the <bittrrex.co> and <bittrrex.org> domain names. While constructive notice of a complainant’s mark is insufficient for a finding of bad faith, actual knowledge may evince a finding of bad faith under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of
it.”); see also 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.”). Complainant asserts that, because Respondent prominently displays the BITTREX mark on the pages resolving to the domain name, Respondent had actual knowledge of Complainant’s rights in the mark prior to registration of the disputed domain name. See Amend. Compl. Exs. F1-F3. The Panel agrees and find Respondent had actual knowledge of Complainant’s rights in the mark and thus registered the at-issue domain names in bad faith per Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bittrrex.co> and <bittrrex.org> domain names be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: May 25, 2018
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page