Bittrex, Inc. v. shaurya chaturvedi
Claim Number: FA1805001786851
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington. Respondent is shaurya chaturvedi (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <supportcoinbasebittrex.com>, registered with GoDaddy.com, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 15, 2018; the Forum received payment on May 15, 2018.
On May 16, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <supportcoinbasebittrex.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 May 17, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 6, 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@supportcoinbasebittrex.com. Also on May 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 June 8, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant, Bittrex, Inc. has been using the BITTREX mark in the United States currency exchange in connection with its cryptocurrency exchange since February 2014.
Complainant asserts rights in the BITTREX mark through registration with the United States Patent and Trademark Office (“USPTO”) as well as other national registrations.
Respondent’s <supportcoinbasebittrex.com> is confusingly similar to Complainant’s BITTREX because Respondent incorporates the BITTREX mark and adds the descriptive terms “support” and “coinbase” (the name of a competing cryptocurrency exchange), and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <supportcoinbasebittrex.com> domain name. Respondent is not commonly known by the domain name, nor has Complainant authorized Respondent to use the BITTREX mark in any way. Further the Respondent has failed to make a bona fide offering of goods or services, or a legitimate noncommercial or fair use at the disputed domain name. Instead, Respondent attempts to pass itself off as Complainant in order to obtain personal information from Complainant’s customers.
Respondent has registered and is using the <supportcoinbasebittrex.com> domain name in bad faith. Respondent is attempting to pass itself off as Complainant in furtherance of a phishing scam. Furthermore, Respondent had actual knowledge of Complainant’s rights in the BITTREX mark prior to Respondent’s registration of the mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the BITTREX mark through the registration of such mark with the USPTO and otherwise.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the BITTREX trademark.
Respondent uses the at-issue domain name to address a website which purports to be a customer support facility but is actually part of a phishing scheme seeking private account information from Complainant’s customers.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant owns registered trademarks for its BITTREX mark. The mark’s USPTO trademark registration, as well as other national registrations, is conclusive evidence of Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark).
Respondent’s <supportcoinbasebittrex.com> domain name contains Complainant’s BITTREX trademark, prefixed by the term “support” followed by the name of another crypto currency exchange “coinbase,” all with the top-level domain name “.com” appended thereto. The differences between Complainant’s trademark and the <supportcoinbasebittrex.com> domain name fail to distinguish the domain name from Complainant’s mark for the purpose of Policy ¶ 4(a)(i). In fact the inclusion of the term “support” in the domain name is somewhat suggestive of Respondent’s business, which may at times require customer support. It thus adds to any confusion. Likewise, the name of a competing business, “coinbase” (Coinbase), in the domain name further enhances confusion. The Panel thus concludes that Respondent’s <supportcoinbasebittrex.com> domain name is confusingly similar to Complainant’s BITTREX trademark. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
WHOIS information for the at-issue domain name identifies the domain name’s registrant as “shaurya chaturvedi” and the record before the Panel contains no evidence that otherwise tends to prove that Respondent is commonly known by the <supportcoinbasebittrex.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <supportcoinbasebittrex.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Additionally, Respondent is using the domain name to pass itself off as Complainant in order to collect internet users’ personal information. Respondent feigns its telephone operative(s) are employed by, or associated with, Complainant in furtherance of a scheme to obtain BITTREX customer account credentials. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4 (c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”); see also, Cubist Pharmaceuticals, Inc. v. Gregory Stea, FA1403001550388 (Forum May 5, 2014) (“Respondent is using the domain name in emails to various IT hardware suppliers in an attempt to impersonate Complainant and defraud its customers. The domain name also resolved to a website similar to Complainant's website. The Panel found that such actions precluded a bona fide offer or fair use.”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below, Policy ¶ 4(b) bad faith circumstances are present and there is additional non-Policy ¶ 4(b) evidence from which the Panel may independently conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
As mentioned above regarding rights and interests, Respondent registered and is using its <supportcoinbasebittrex.com> domain name to facilitate a phishing scheme aimed at deceiving Complainant’s customers into giving up private information regarding their BITTREX accounts. By posing as a BITTREX customer support facility Respondent offers BITTREX customers bogus telephone support. When misguided customers call Respondent they are asked for their private account data. Respondent’s use of the at-issue domain name in this manner, which disrupts Complainant’s business, indicates bad faith registration and use per Policy ¶ 4(b)(iii). See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”). Also, Respondent’s phishing scheme, in itself, evinces bad faith registration and use. See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use). Moreover, since Respondent is ultimately using the domain name to trade on the goodwill resident in Complainant’s BITTREX mark, the instant circumstances also demonstrate Respondent’s bad faith under Policy ¶ 4(b)(iv). See State Fair of Texas v. Granbury.com, FA 95288 (Forum Sept. 12, 2000) (finding bad faith where the respondent registered the domain name <bigtex.net> to infringe on the complainant’s goodwill and attract Internet users to respondent’s website).
Finally, Respondent had actual knowledge of Complainant’s rights in the BITTREX mark when it registered <supportcoinbasebittrex.com>. Respondent’s actual knowledge is, without limitation, evident from the notoriety of Complainant’s trademark and from Respondent’s overt use of the BITTREX trademark on the <supportcoinbasebittrex.com> website. Registering and using a confusingly similar domain name with knowledge of Complainant’s rights in such domain name shows bad faith registration and use pursuant to Policy ¶4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <supportcoinbasebittrex.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: June 10, 2018
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