Bittrex, Inc. v. halil sonmez
Claim Number: FA1808001801560
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is halil sonmez (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain names at issue are <bittrexse.com> and <bittrexs.com>, (the “Domain Names”) registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 15, 2018; the Forum received payment on August 15, 2018.
On August 17, 2018, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <bittrexse.com> and <bittrexs.com> domain names are registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the names. 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 August 17, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 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@bittrexse.com and postmaster@bittrexs.com. Also on August 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 September 10, 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
Complainant’s contentions can be summarised as follows:
Complainant is the owner of the trade mark BITTREX registered, inter alia, in the USA with first use recorded as 2014. It has owned <bittrex.com> since 2014.
The Domain Names registered in 2018 are confusingly similar to Complainant’s BITTREX mark, wholly incorporating it and adding only the letter(s) ‘se’ or ‘s’ and the gTLD “.com” which does not distinguish the Domain Names from Complainant’s mark.
Respondent is not commonly known by the BITTREX mark and has no permission from Complainant to use Complainant’s mark or its logo. The Domain Names have been used for a clone of Complainant’s web site and for a suspected phishing scam and fraud. This cannot be a bona fide offering of goods and services or a non commercial legitimate fair use. Respondent has no rights or legitimate interests in the Domain Name.
Respondent registered the Domain Names to direct them to sites that mimic those of Complainant and use Complainant’s logo to confuse Internet users into believing the web site and Domain Names are associated with Complainant. The mimicking of Complainant shows Respondent is aware of Complainant and its business. The Domain Names have been registered and used in bad faith to confuse Internet users under Policy ¶ 4(b)(iv). Typosquatting per se is evidence of bad faith registration and use.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is the owner of the trade mark BITTREX registered, inter alia, in the USA with first use recorded as 2014. It has owned <bittrex.com> since 2014.
The Domain Names registered in 2018 have been used to point to sites that mimic Complainant’s official site and log in page.
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 Names consists of Complainant's BITTREX mark (which is registered in USA for financial services with first use recorded as 2014), the letters ‘se’ or ‘s’ and the gTLD “.com” which do not distinguish the Domain Names from Complainant’s mark.
The Panel agrees that misspellings such as addition of a letter or two does not distinguish the Domain Names from Complainant's BITTREX trade mark pursuant to the Policy. See Twitch Interactive Inc. v Antonio Teggi, FA 1626528 (Forum Aug. 3, 2015) (where an additional ‘c’ was added)
The gTLD “.com” does not serve to distinguish a domain name from a complainant’s mark. 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 Names are confusingly similar to Complainant’s BITTREX registered mark.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
Complainant has not authorised the use of its mark. There is no evidence or reason to suggest Respondent is commonly known by the Domain Names. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sep. 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).
The web sites attached to the Domain Names have copied the log in page from Complainant’s web site so that Respondent’s sites appeared to be official sites of Complainant. They do not make it clear that there is no connection with Complainant. The Panel finds this use is deceptive and passing off. As such it cannot amount to the bona fide offering of goods and services. See iFinex Inc. v Yuri Heifetz/Genie-Solution, FA 1789385 (Forum July 9, 2018) (holding that the respondent’s mimicking the complainant’s web site in order to cause existing or potential customers of the complainant’s to believe they are dealing with the complainant is prima facie evidence of the respondent’s lack of rights and legitimate interests in the disputed domain name). Further, phishing itself cannot be a bona fide offering of goods and services or a legitimate non commercial fair use.
As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Names and that 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 Names in relation to Respondent’s sites is confusing and disruptive in that visitors to the sites might reasonably believe they are connected to or approved by Complainant as they use material from Complainant’s web site without permission. The fact that the log in section of Complainant’s web site has been copied shows that Respondent is aware of Complainant and its business. Accordingly, the Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users to its websites by creating likelihood of confusion with Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web sites under Policy ¶ 4(b)(iv), likely to disrupt the business of Complainant under Policy ¶ 4(b)(iii). See Allianz of AM. Corp v Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use where the respondent was diverting Internet users searching for the complainant to its own website).
Further, phishing can be evidence of bad faith registration and use within Policy ¶ 4(a)(iii) See Klabzuba Oil & Gas, Inc v LAKHPAT SINGH BHANDARI, FA 1506001625750 (Forum July 17, 2015).
Additionally, the Domain Names seeks to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the complainant’s mark and be taken to the respondent’s site is registration and use in bad faith).
As such, the Panelist believes that Complainant has made out its case that the Domain Names were registered and used in bad faith and has satisfied the third limb of the Policy under paras. 4(b)(iv) and 4(b)(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 <bittrexse.com> and <bittrexs.com> domain names be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: September 10, 2018
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