Bittrex, Inc. v. claudia regina pinheiro
Claim Number: FA1807001797379
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, US. Respondent is claudia regina pinheiro (“Respondent”), Brazil.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bittrex-it.com>, registered with Ligne Web Services SARL dba LWS.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 18, 2018; the Forum received payment on July 18, 2018.
On July 20, 2018, Ligne Web Services SARL dba LWS confirmed by e-mail to the Forum that the <bittrex-it.com> domain name is registered with Ligne Web Services SARL dba LWS and that Respondent is the current registrant of the name. Ligne Web Services SARL dba LWS has verified that Respondent is bound by the Ligne Web Services SARL dba LWS 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 23, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 13, 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-it.com. Also on July 23, 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 15, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it operates one of the leading cryptocurrency exchanges in the world. Complainant’s cryptocurrency exchange has more than 1,400,000 users based in 60 countries throughout the world. In addition, 200 digital tokens are currently being traded on Bittrex, amounting to a trading volume of 500,000,000 US dollars. Complainant has rights in the BITTREX mark based upon its registration of the mark in the United States on January 16, 2018.
Complainant alleges that the disputed domain name is confusingly similar to its BITTREX mark, as the name is only differentiated from the mark by the addition of “-IT and a generic top-level domain (“gTLD”). ” “IT” is commonly used for the abbreviation for “Italy” and Internet users may mistakenly believe that “BITTREX-IT” represents the Italian branch of the company. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the BITTREX mark. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods and services or a legitimate noncommercial or fair use. Rather, Respondent is using the disputed domain name in an attempt to pass off as Complainant in furtherance of a phishing scheme. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. Respondent registered and uses the disputed domain in connection with a phishing scam to intentionally create a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of Complainant. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the BITTREX mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark BITTREX and uses it to operate one of the leading cryptocurrency exchanges in the world.
Complainant’s rights in its mark date back to at least January 16, 2018.
The disputed domain name was registered on July 2, 2018.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
Respondent is using the disputed domain name in an attempt to pass off as Complainant 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.”).
Prior to discussing the three elements of the Policy, the Panel must decide on the language of the proceedings. The Registration Agreement is written in French, thereby making the language of the proceedings French.
Pursuant to UDRP Rule 11(a), the Panel has the authority to determine a different language for the proceedings, having regard to the circumstances of the case. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Pursuant to Rule 10(b), Respondent must be given a fair opportunity to present its case. Pursuant to Rule 10(c), the Panel may weigh the relative time and expense in enforcing the French language agreement, which would result in prejudice toward either party. See 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.”).
In the present case, Respondent has received the Commencement Notification in French and has chosen not to respond to the Complaint; the resolving website is in English. Pursuant to Rule 11(a), having regard to the circumstances of the case, the Panel determines that fairness and justice to both parties, and due expedition, are best satisfied by conducting the remainder of the proceedings in English. See H-D U.S.A., LLC v. Yoshihiro Nakazawa, FA 1736477 (Forum July 21, 2017); see also UBS AG v. ratzel laura, FA 1735687 (Forum July 14, 2017).
The disputed domain name is confusingly similar to Complainant’s BITTREX mark, as the name is merely a combination of the mark and a country code (“IT” for Italy), separated by a hyphen, and a gTLD. The addition of punctuation, geographical terms, and a gTLD to a mark are all insufficient to differentiate a disputed domain name from said mark for the purposes of Policy ¶ 4(a)(i). See General Motors LLC v. Domain Admin, Privacy Protection Service INC d/b/a PrivacyProtect.org, FA 1656166 (Forum Feb. 12, 2016) (finding respondent’s <gm-uzbekistan.com> domain name confusingly similar to complainant’s GM mark as the addition of the geographic term “uzbekistan” is inconsequential to a Policy ¶ 4(a)(i) analysis). Panel therefore finds that the <bittrex-it.com> domain name is confusingly similar to the BITTREX mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use its BITTREX mark in any way. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Here, the WHOIS information of record identifies Respondent as “claudia regina pinheiro”. The Panel therefore finds, under Policy ¶ 4(c)(ii), that Respondent has not been commonly known by the disputed domain name.
Further, Respondent’s lack of rights or legitimate interests in the disputed 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. Instead, the disputed domain name resolves to a webpage where Respondent is attempting to pass off as Complainant in furtherance of a phishing scheme. Complainant provides screenshots showing that the resolving webpage displays Complainant’s mark and is a copy of Complainant’s own logon page; this is clearly an attempt to trick Internet users into divulging their usernames and passwords. A respondent’s use of a disputed domain name in an attempt to pass off as a complainant is not indicative of rights and legitimate interests per Policy ¶¶ 4(c)(i) & (iii): nor is the use of a domain in furtherance of a phishing scheme. See DaVita Inc. v. Cynthia Rochelo, 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.”). The Panel therefore finds that Respondent lacks rights and legitimate interests in the disputed domain name per Policy ¶¶ 4(c)(i) & (iii). And the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving website mimics Complainant’s own webpage in furtherance of a phishing scheme. A respondent’s use of a disputed domain name to pass off as a complainant in furtherance of a phishing scheme may be evidence of bad faith per Policy ¶¶ 4(a)(iii) & 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.”); see also Capital One Fin. Corp. & Capital One Bank v. Howel, FA 289304 (Forum Aug. 11, 2004) (“The <capitalonebank.biz> domain name is confusingly similar to Complainant’s mark, it is being used to redirect Internet users to a website that imitates Complainant’s credit application website, and it is being used to fraudulently [sic] acquire personal information from Complainant’s clients. Respondent’s use of the domain name supports findings of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). The Panel therefore finds that Respondent registered and is using the disputed domain name in bad faith per Policy ¶¶ 4(a)(iii) & 4(b)(iv).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark. Actual knowledge is demonstrated by the fact that the resolving website displays Complainant’s mark and mimics the logon page of Complainant’s website. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also 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 Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under 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 <bittrex-it.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: August 15, 2018
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