Bittrex, Inc. v. Shimanto Neer
Claim Number: FA1811001814847
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is Shimanto Neer (“Respondent”), Bangladesh.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bittrexlogin.trade>, registered with NameCheap, Inc.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 2, 2018; the Forum received payment on November 2, 2018.
On November 5, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <bittrexlogin.trade> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 November 6, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 26, 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@bittrexlogin.trade. Also on November 6, 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 November 28, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant, Bittrex, Inc. is a U.S.-based company which uses the BITTREX mark to operate one of the leading cryptocurrency exchanges in the world.
Complainant has rights in the BITTREX mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <bittrexlogin.trade> domain name is confusingly similar to Complainant’s BITTREX mark as the domain name only adds the descriptive term “login” and the “.trade” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <bittrexlogin.trade> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the BITTREX mark in any manner. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent previously used the domain name to display Complainant’s mark and content related to Complainant. Further, Respondent also previously used the domain name to resolve to a third-party webpage, <neteller.com>, where it attempted to phish for private login information. Moreover, as of August 17, 2018, a warning message appears when users attempt to visit the webpage associated with the <bittrexlogin.trade> domain name.
Respondent registered and is using the <bittrexlogin.trade> domain name in bad faith. Respondent registered and used the domain name to direct Internet users to a website where Respondent previously used Complainant’s mark and name to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant. Additionally, Respondent subsequently used the domain name to resolve to the third-party website <neteller.com>. Further, Respondent used the domain name to phish for login information. Moreover, as of September 27, 2018, the domain name resolves to a blank webpage. Finally, such use of the domain name indicates Respondent had actual knowledge of Complainant’s rights in the mark at the time it registered and subsequently used the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the BITTREX mark through the registration of such mark with the USPTO and otherwise.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the BITTREX trademark.
Respondent used the at-issue domain name to address a webpage pretending to be sponsored by Complainant and to redirect to a third-party website to facilitate 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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant owns a registered trademark for its BITTREX mark. The mark’s USPTO registration is conclusive evidence of Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark).
Respondent’s <bittrexlogin.trade> domain name contains Complainant’s BITTREX trademark followed by the term “login” and all followed by the descriptive top-level domain name “.trade.” The differences between Complainant’s trademark and the <bittrexlogin.trade> domain name fail to distinguish the domain name from Complainant’s mark for the purpose of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <bittrexlogin.trade> domain name is confusingly similar to Complainant’s BITTREX trademark. See YETI Coolers, LLC v. Randall Bearden, FA 16060016880755 (Forum Aug. 10, 2016) (finding that the words “powder coating” in the <yetipowdercoating.com> domain name are “merely explicative and directly refer to some of the services rendered by the Complainant” and, therefore, create an “irrefutable confusing similarity” to complainant’s YETI mark); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Shimanto Neer” and the record before the Panel contains no evidence that otherwise tends to prove that Respondent is commonly known by the <bittrexlogin.trade> domain name. The Panel therefore concludes that Respondent is not commonly known by the <bittrexlogin.trade> domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Additionally, Respondent has used the domain name to pass itself off as Complainant by addressing a website displaying Complainant’s BITTREX mark, and to redirect internet users to a third-party website of one of Complainant’s affiliates in furtherance of a phishing scheme. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4 (c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Netflix, Inc. v. Irpan Panjul / 3corp.inc, FA 1741976 (Forum Aug. 22, 2017) (“The usage of Complainant’s NETFLIX mark which has a significant reputation in relation to audio visual services for unauthorised audio visual material is not fair as the site does not make it clear that there is no commercial connection with Complainant and this amounts to passing off . . . As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name.”); see also, 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.”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below, Policy ¶ 4(b) bad faith circumstances are present and there is additional non-Policy ¶ 4(b) evidence from which the Panel may independently conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
As mentioned above regarding rights and legitimate interests, Respondent used the domain name to address a website which pretended to be related to or sponsored by Complainant. The website made extensive unauthorized use of Complainant’s BITTREX trademark. Using the domain name in this manner indicates Respondent’s bad faith registration and use of the at-issue domain name pursuant to Policy ¶ 4(b)(iv). See Bio World Merchandising, Inc. v. Haught, FA 1744922 (Forum Sept. 21, 2017) ( “Even if the Domain Name were not being used to defraud third parties, using it to attract Complainant’s customers to a competing business using Complainant’s mark for commercial gain and to disrupt Complainant’s business would be sufficient for a finding of bad faith.”); see also, State Fair of Texas v. Granbury.com, FA 95288 (Forum Sept. 12, 2000) (finding bad faith where the respondent registered the domain name <bigtex.net> to infringe on the complainant’s goodwill and attract Internet users to respondent’s website).
Additionally, Respondent used <bittrexlogin.trade> to address a third party website’s login page. The page spoofs the login page of Paysafe. Respondent used the spoofed page to capture the Paysafe login information of wayward internet users. Respondent’s use of the at-issue domain name in connection with this phishing scheme indicates bad faith registration and use of the at-issue domain. See Bittrex, Inc. v. Protection of Private Person/Privacy Protection/ Privacy protection service - whoisproxy.ru, FA 1762332 (Forum Jan. 15, 2018) (use of domains in connection with phishing scam where respondent passed itself off as complaint is evidence of bad faith under the Policy); 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).”).
Finally, Respondent had actual knowledge of Complainant’s rights in the BITTREX mark when it registered <bittrexlogin.trade>. Respondent’s actual knowledge is, without limitation, evident from the notoriety of Complainant’s trademark, from the incorporation of the suggestive terms “login” and “trade” into the domain name, and from Respondent’s use of the confusingly similar domain name to address a webpage displaying Complainant’s BITTREX trademark. Registering and using the confusingly similar <bittrexlogin.trade> domain name with knowledge of Complainant’s rights in the BITTREX mark shows bad faith registration and use pursuant to Policy ¶4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bittrexlogin.trade> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: November 29, 2018
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