Bittrex, Inc. v. Andrei Zaripov
Claim Number: FA1807001796116
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is Andrei Zaripov (“Respondent”), Russian Federation.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bittrcex.com>, registered with Registrar of Domain Names REG.RU LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 10, 2018; the Forum received payment on July 10, 2018.
On July 11, 2018, Registrar of Domain Names REG.RU LLC confirmed by e-mail to the Forum that the <bittrcex.com> domain name is registered with Registrar of Domain Names REG.RU LLC and that Respondent is the current registrant of the name. Registrar of Domain Names REG.RU LLC has verified that Respondent is bound by the 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 July 17, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 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@bittrcex.com. Also on July 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 August 7, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <bittrcex.com> domain name is confusingly similar to Complainant’s BITTREX mark.
2. Respondent does not have any rights or legitimate interests in the <bittrcex.com> domain name.
3. Respondent registered and uses the <bittrcex.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant is a U.S.-based company that operates one of the leading cryptocurrency exchanges in the world in connection with the BITTREX mark. Complainant holds a registration for the BITTREX mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 5,380,786, registered Jan. 16, 2018).
Respondent registered the<bittrcex.com> domain name on June 13, 2018, and uses it to pass off as Complainant by resolving to a copy of Complainant’s <bittrex.com> website.
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.”).
Preliminary Issue: Language of the Proceeding
Complainant requests that this administrative proceeding be conducted in the English language pursuant to UDRP Rule 11(a). The Panel finds that there is evidence to suggest that the Respondent is conversant in the English language, including the English content at the website resolving from the disputed domain name. Thus, the Panel determines that this proceeding will be conducted in English. See The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (panel exercising discretion in deciding that the language of the proceedings advance in English, contrary to the Registration Agreement, based on evidence that respondent has command of the language); see also Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).
The Panel finds that Complainant’s registration of the BITTREX mark with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). Complainant provides a copy of its registration of the BITTREX mark with the USPTO to support its claim (e.g., Reg. No. 5,380,786, registered Jan. 16, 2018).
Respondent’s <bittrcex.com> domain name is a slight misspelling of the BITTREX mark, which is insufficient to differentiate the domain name from the mark. 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 thus finds that Respondent’s <bittrcex.com> domain name is confusingly similar to Complainant’s BITTREX mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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 alleges that Respondent has no rights or legitimate interests in the disputed domain name, and is not commonly known by the domain name. Complainant has not licensed or otherwise authorized Respondent to use its BITTREX mark. The WHOIS information of record for the <bittrcex.com> domain name lists “Andrei Zaripov” as the registrant. Therefore, the Panel finds that Respondent is not commonly known by the <bittrcex.com> domain name. See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name); see also State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)).
Complainant further argues that Respondent’s lack of rights or legitimate interests in the <bittrcex.com> domain name is demonstrated by its failure to use the name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant contends that Respondent uses the disputed domain name to pass off as Complainant in furtherance of a phishing scheme. Complainant provides screenshots of its own <bittrex.com> website as well as Respondent’s <bittrcex.com> website, which indicate that the websites are identical, and argues that Respondent uses the login page to phish for Internet users’ personal login information. The Panel agrees and finds that Respondent does not have rights or legitimate interests in the <bittrcex.com> domain name per Policy ¶¶ 4(c)(i) and (iii). Chevron Intellectual Property LLC v. Thomas Webber / Chev Ronoil Recreational Sport Limited, FA 1661076 (Forum Mar. 15, 2016) (finding that the respondent had failed to provide a bona fide offering of goods or services or any legitimate noncommercial or fair use, stating, “Respondent is using an email address to pass themselves off as an affiliate of Complainant. Complainant presents evidence showing that the email address that Respondent has created is used to solicit information and money on false pretenses. The disputed domain name is being used to cause the recipients of these emails to mistakenly believe Respondent has a connection with Complainant and is one of the Complainant’s affiliates.”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent’s bad faith is indicated by its use of the <bittrcex.com> domain name to pass off as Complainant in furtherance of a phishing scheme. A respondent’s use of a disputed domain name to pass off as a complainant and phish for Internet users’ private information is evidence of bad faith under Policy ¶¶ 4(b)(iv) & 4(a)(iii). 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 per Policy ¶ 4(b)(iv)). See also 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).”). The Panel therefore finds that Respondent has registered and used the domain name in bad faith under Policy ¶¶ 4(b)(iv) & 4(a)(iii).
Complainant also asserts, based upon Respondent’s copying of Complainant’s own webpage, that Respondent had actual knowledge of Complainant’s rights in the BITTREX mark prior to registration of the <bittrcex.com> domain name. The Panel agrees and finds that Respondent registered the <bittrcex.com> domain name in bad faith under Policy ¶ 4(a)(iii). See Twentieth Century Fox Film Corporation and Fox International Channels (US), Inc. v. Daniel Pizlo / HS, FA1412001596020 (Forum Jan. 27, 2015) (finding that the respondent must have had actual knowledge of the complainant and its rights in the FOX LIFE mark, where the respondent was using the disputed domain name to feature one of the complainant’s videos on its website, indicating that the respondent had acted in bad faith under Policy ¶ 4(a)(iii)).
The Panel finds that Complainant has satisfied 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 <bittrcex.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: August 8, 2018
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