Bittrex, Inc. v. Tony Crew
Claim Number: FA1806001791558
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is Tony Crew (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bittrexnetwork.com> (‘the Domain Name’), registered with GoDaddy.com, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 13, 2018; the Forum received payment on June 13, 2018.
On June 14, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <bittrexnetwork.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 June 14, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 5, 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@bittrexnetwork.com. Also on June 14, 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 6, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant is the owner of the trade mark BITTREX, registered inter alia in the UK and EU with first use in 2014 since which it has also owned Bittrex.com.
The Domain Name registered in 2017 is confusingly similar to the Complainant’s BITTREX mark, wholly incorporating it and adding only the generic term ‘network’ and the gTLD .com neither of which distinguish the Domain Name from the Complainant’s mark.
Respondent is not commonly known by the BITTREX mark and has no permission from the Complainant to use the Complainant’s mark. The Domain Name has been used for competing cryptocurrency services and pop up advertising which is not a bona fide offering of goods and services or a non commercial legitimate fair use. The Respondent has no rights or legitimate interests in the Domain Name.
The Respondent registered the Domain Name to direct it to site to confuse Internet users into believing the web site and Domain Name are associated with the Complainant for commercial gain. The choice of name to offer competing services shows the Respondent is aware of the Complainant and its business. The Domain Name has been registered and used in bad faith.
PTC Global LLC is an Australian Company manufacturing a protective coating for delicate services. However, searches on the Internet about Tony Crew and PTC Global reveal about twenty sites related to bitcoin. So the Respondent has given inaccurate information on Who Is.
Respondent did not respond to a cease and desist letter from the Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the trade mark BITTREX, registered inter alia in the UK and EU with first use in 2014 since which it has also owned Bittrex .com.
The Domain Name registered in 2017 has been used for competing crypto currency services and pop up advertising without authorisation of the Complainant.
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.”).
Identical or Confusingly Similar
The Domain Name consists of, inter alia, the Complainant's BITTREX mark (which is registered, inter alia in the EU and UK for services relating to currency and has been used since 2014), the generic term ‘network’ which arguably relates to the Complainant’s business and the gTLD .com. Previous panels have found confusing similarity when a respondent merely adds a generic term to a Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000)(finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The Panel agrees that the addition of the generic term ‘network’ to the Complainant's mark does not distinguish the Domain Name from the Complainant's trade mark pursuant to the Policy especially as the Complainant operates on computer networks.
The gTLD .com does not serve to distinguish the Domain Name from the BITTREX mark, which is the distinctive component of the Domain Name. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact. commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 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).
Use of a Domain Name containing a third party mark for competing services and pop up advertising is not a bona fide offering of goods or services or a legitimate non commercial fair use. (See Am. Intl Group Inc v Benjamin FA 944242 (Forum May 11, 2007) finding that the Respondent's use of a confusingly similar domain name to advertise real estate services which competed with the Complainant's business did not constitute a bona fide use of goods and services.)
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the panelist the use made of the Domain Name in relation to the site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it offers competing services and pop up advertising under a Domain Name containing the Complainant’s distinctive mark. The use of the Complainant's word mark in relation to cryptocurrency services makes it likely that the Respondent was aware of the Complainant and its business at the time of registration. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the web site likely to disrupt the business of the Complainant. (See Asbury Auto Group Inc v Tex. Int'l Prop Assocs FA 958542 (Forum May 29, 2007) finding that the respondent's use of the disputed domain name to advertise car dealerships that competed with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of those competing dealerships and was therefore evidence of bad faith and use).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iv) and 4 (b)(iii) and there is no reason to consider further grounds of alleged bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bittrexnetwork.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
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