Bittrex, Inc. v. Neusa ibrahim abdul pereira sultan
Claim Number: FA1807001796329
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is Neusa ibrahim abdul pereira sultan (“Respondent”), Brazil.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bittrex-ix.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 11, 2018; the Forum received payment on July 11, 2018.
On July 13, 2018, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <bittrex-ix.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 13, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 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-ix.com. Also on July 13, 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 6, 2018, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant operates one of the leading cryptocurrency exchanges in the world under the BITTREX mark.
Complainant holds a registration for the BITTREX service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 5,380,786, registered January 16, 2018.
Respondent registered the domain name <bittrex-ix.com> on June 17, 2018.
The domain name is confusingly similar to Complainant’s BITTREX mark.
Respondent is not authorized to use Complainant’s BITTREX mark.
Respondent has not been commonly known by the domain name.
Respondent fails to use the domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use.
Instead, Respondent disrupts Complainant’s business by redirecting internet users to a website that mimics Complainant’s BITTREX website.
Respondent lacks rights to and legitimate interests in the domain name.
Respondent registered and uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) The same domain name was registered and is being used by Respondent 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the same domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable allegations and inferences set out in the Complaint unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 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 service mark sufficient for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See, for example, Liberty Global Logistics, LLC v. damilola emmanuel, FA 1738536 (Forum August 4, 2017):
Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.
This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here Brazil). See, for example, W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum August 24, 2010):
[T]he Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <bittrex-ix.com> domain name is confusingly similar to Complainant’s BITTREX service mark. The domain name contains the mark in its entirety, with only the addition of a hyphen and the generic term “ix,” which may be taken as an abbreviation for “Internet exchange,” a description of Complainant’s business, plus the generic Top Level Domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See King Ranch IP, LLC v. E Miller, FA 1785596 (Forum June 6, 2018):
Complainant’s trademark is used in-part with regard to barbecue related goods and services; the term “bbq” is thus suggestive of the … trademark. Therefore, the Panel finds that the … domain name is confusingly similar to Complainant’s … mark.
See also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Forum April10, 2007):
The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.
This is because every domain name requires a gTLD.
Under Policy 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the <bittrex-ix.com> domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c) (i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <bittrex-ix.com> domain name, and that Complainant has not licensed or otherwise authorized Respondent to use the BITTREX mark. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Neusa Ibrahim Abdul Pereira Sultan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by the domain name <chevron-europe.com> where the relevant WHOIS information identified its registrant only as “Fred Wallace.”). See also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by a disputed domain name where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name).
We next observe that Complainant asserts, without objection from Respondent, that Respondent uses the <bittrex-ix.com> domain name to resolve to a website that mimics Complainant’s official website (called “passing off”) in order to obtain from them their personal credentials, in a process commonly denominated “phishing,” and that it uses those credentials to steal funds from those customers’ cryptocurrency accounts. It should go without saying that using the domain name to facilitate a financial fraud is neither a bona fide offering of goods or services by means of the domain name under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of it under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy. See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017), understatedly concluding that:
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.
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent has employed the <bittrex-ix.com> domain name to pass itself off online as Complainant with the aim of inducing unsuspecting internet users to part with their sensitive personal information in a fraudulent scheme commonly known as “phishing.” Under Policy ¶ 4(b)(iv), such a use of the domain name unequivocally demonstrates Respondent’s bad faith in registering and using it. See, for example, Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using a disputed domain name to pass itself off as a UDRP complainant in a phishing scheme was evidence of a respondent’s bad faith registration and use).
We are also convinced by the evidence that Respondent knew of Complainant and its rights in the BITTREX mark when Respondent registered the <bittrex-ix.com> domain name. This further demonstrates Respondent’s bad faith in registering the domain name. See Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum January 5, 2018), a panel there finding bad faith registration of a contested domain name where it determined:
[T]he fact [that] Respondent registered a domain name that looked identical to the … mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <bittrex-ix.com> domain name be forthwith TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: August 7, 2018
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page