Bittrex, Inc. v. Vivian Khouri Samara / Vivian
Claim Number: FA1806001790845
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is Vivian Khouri Samara / Vivian (“Respondent”), Brazil.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bittrex-long.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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 8, 2018; the Forum received payment on June 8, 2018.
On June 11, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <bittrex-long.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 June 12, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 2, 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-long.com. Also on June 12, 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 July 5, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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, Bittrex, Inc., is a U.S.-based company that operates one of the leading cryptocurrency exchanges in the world under the BITTREX mark. Complainant has rights in the BITTREX mark based on registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,380,786, registered Jan. 16, 2018). Respondent’s <bittrex-long.com> domain name is confusingly similar to Complainant’s BITTREX mark because Respondent wholly incorporates Complainant’s mark plus a hyphen, descriptive term, and a “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <bittrex-long.com> domain name because Respondent is not commonly known by the disputed domain name nor has Complainant authorized Respondent to use the BITTREX mark. Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to pass off as Complainant in order to conduct a phishing scheme.
Respondent registered and uses the <bittrex-long.com> domain name in bad faith by attempting to pass off as Complainant to conduct a phishing scheme. Additionally, Respondent had actual knowledge of Complainant’s rights in the BITTREX mark prior to Respondent’s registration of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Bittrex, Inc., is a U.S.-based company that operates one of the leading cryptocurrency exchanges in the world under the BITTREX mark. Complainant has rights in the BITTREX mark based on registration with the USPTO (e.g., Reg. No. 5,380,786, registered Jan. 16, 2018). Respondent’s <bittrex-long.com> domain name is confusingly similar to Complainant’s BITTREX mark.
Respondent registered the <bittrex-long.com> domain name on May 20, 2018.
Respondent lacks rights and legitimate interests in the <bittrex-long.com> domain name. The website hosted at the disputed domain name is a copy of the Bittrex Website’s log-in page, giving the appearance of use in connection with a phishing scam as the site prompts consumers to enter their confidential log-in credentials.
Respondent registered and uses the <bittrex-long.com> domain name 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., 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., 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 has rights in the BITTREX mark under Policy ¶ 4(a)(i) based upon registration of the mark with the USPTO. Respondent’s <bittrex-long.com> domain name is confusingly similar to Complainant’s BITTREX mark because Respondent incorporates the mark in its entirety before appending a hyphen, a generic term and a gTLD.
Respondent has no rights or legitimate interests in the <bittrex-long.com> domain name. Respondent is not authorized to use Complainant’s BITTREX mark. The WHOIS information of record identifies the registrant of the disputed domain name as “Vivian Khouri Samara / Vivian.” Therefore, Respondent is not commonly known by the disputed domain name. Where a response is lacking, the WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines, FA 1574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.).
Respondent fails to make a bona fide offering or goods or services or legitimate noncommercial or fair use of the <bittrex-long.com> domain name because Respondent is attempting to pass off as Complainant to conduct what appears to be a phishing scheme. See DaVita Inc., 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.”).
Respondent registered and uses the <bittrex-long.com> domain name in bad faith because Respondent appears to pass off as Complainant in order to conduct a phishing scheme. Passing off to acquire users’ personal information is evidence of bad faith per Policy ¶ 4(b)(iv). See Bittrex, Inc., 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.”). Here, Respondent registered and uses the disputed domain name to direct Internet users to a website that mimics Complainant’s website.
Respondent had actual knowledge of Complainant’s BITTREX mark when registering the <bittrex-long.com> domain name. Therefore, Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant 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-long.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: July 18, 2018
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