Bittrex, Inc. v. Matvei Isaev / Private Person
Claim Number: FA1807001796661
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is Matvei Isaev / Private Person (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <promobittrex.info>, 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 13, 2018; the Forum received payment on July 13, 2018.
On July 17, 2018, Registrar of Domain Names REG.RU LLC confirmed by e-mail to the Forum that the <promobittrex.info> 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 19, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 8, 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@promobittrex.info. Also on July 19, 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 13, 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.
Pursuant to UDRP Rule 11(a), the Panel finds that there is persuasive evidence to suggest that the Respondent is conversant and proficient in the English language. Therefore, the Panel determines that this proceeding will be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
1. Respondent’s <promobittrex.info> domain name is confusingly similar to Complainant’s BITTREX mark.
2. Respondent does not have any rights or legitimate interests in the <promobittrex.info> domain name.
3. Respondent registered and uses the <promobittrex.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Bittrex, Inc., is a U.S.-based company that uses the BITTREX mark to operate a cryptocurrency exchange. 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 <promobittrex.info> domain name was registered on June 20, 2018, and uses it to pass off as Complainant and in furtherance of a phishing scheme.
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 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 Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum Jul. 28, 2017) (finding that registration with the USPTO was sufficient to establish the Complainant’s rights in the HOME DEPOT mark). Complainant provides a copy of its USPTO registration for the BITTREX mark (e.g. Reg. No. 5,380,786, registered Jan. 16, 2018).
Respondent’s <promobittrex.info> domain name incorporates the BITTREX mark and adds the descriptive term “promo” and the “.info” gTLD. Additions to a complainant’s mark such as a descriptive term and a gTLD are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See Bloomberg Finance L.P. v. Sunny Bhadauria, FA 1786429 (Forum June 7, 2018) (finding the <bloombergquint.org> domain name to be confusingly similar to the complainant’s BLOOMBERG mark, as the name consists of the mark, the added term “quint” (which refers to the complainant’s Indian business partner “Quintillian Media”) and the gTLD “.org”). Thus, the Panel finds that Respondent’s <promobittrex.info> 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 argues that Respondent has no rights or legitimate interests in the <promobittrex.info> domain name, and is not commonly known by the disputed domain name. The WHOIS information of record for the <promobittrex.info> domain name lists the registrant as “Matvei Isaev / Private Person,” and no information on the record indicates that Respondent owns any trademark or service mark rights in the BITTREX name. The Panel therefore finds that Respondent is not commonly known by the <promobittrex.info> domain name under Policy ¶ 4(c)(ii). See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum Jul. 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”).
Complainant also argues that Respondent’s lack of rights or legitimate interests in the <promobittrex.info> domain name is demonstrated by its failure to use the name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Complainant contends that the disputed domain name is used to pass off as Complainant, and provides screenshots that show that Respondent duplicates Complainant’s login webpage. Complainant also provides screenshots of the disputed domain name’s resolving webpage which displays an ETH “promotion” scam in order to fraudulently obtain cryptocurrency payments from Complainant’s customers and other Internet users, as well as an article which explains the scam in detail. The Panel finds that Respondent’s use of the disputed domain name is not a bona fide offering of goods or services or for a legitimate noncommercial or fair use and thus Respondent does not have rights or legitimate interests in the <promobittrex.info> domain name under Policy ¶¶ 4(c)(i) or (iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business).
The Panel finds that complainant has satisfied Policy ¶ 4(a)(ii).
Complainant has demonstrated that Respondent registered and uses the <promobittrex.info> domain name in bad faith by attempting to attract Internet users to the resolving website in order to pass off as Complainant, for Respondent’s gain. The Panel finds that this constitutes bad faith under Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, 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.”).
The Panel finds that Respondent also uses the disputed domain name in furtherance of a scam to obtain fraudulent cryptocurrency payments, which constitutes bad faith under Policy ¶ 4(a)(iii). See Google Inc. v. Domain Admin, FA 1502001605239 (Forum Mar. 22, 2015) (finding that use of a disputed domain name to aid illegal activities under Complainant’s trademark suggests Respondent’s bad faith).
Complainant asserts that, because Respondent prominently displays the BITTREX mark on the pages resolving from the domain name, Respondent had actual knowledge of Complainant’s rights in the mark prior to registration of the disputed domain name. The Panel agrees and finds that Respondent had actual knowledge of Complainant’s rights in the mark and thus registered the disputed domain name in bad faith. See Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”).
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 <promobittrex.info> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: August 14, 2018
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