Bittrex, Inc. v. Andrii Berezutskyi
Claim Number: FA1811001814849
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is Andrii Berezutskyi (“Respondent”), Ukraine.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <arbittrex.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 known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 2, 2018; the Forum received payment on November 2, 2018.
On November 6, 2018, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <arbittrex.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 November 7, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 27, 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@arbittrex.com. Also on November 7, 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 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 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 in the United Kingdom and in the European Union in 2017. and in United States on January 16, 2018.
Complainant alleges that the disputed domain name is confusingly similar to its BITTREX mark as the domain name only adds to the mark the descriptive acronym “ar” (short for “accounts receivable”) and the “.com” generic top-level domain (“gTLD”).
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 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 uses the domain name to offer competing cryptocurrency services. Further, Respondent uses the domain name to further an illicit phishing scheme and/or to install malware onto users’ computers.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. Respondent registered and used the domain name to direct Internet users to a website where Respondent purports to offer competing services to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant. Further, Respondent uses the domain name to phish for users’ information and/or to install malware onto users’ computers. Additionally, 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 owns rights in the mark BITTREX dating back to at least May 15, 2017.
The disputed domain name was registered on September 20, 2018.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolves to a website that offers products and services that purport to compete with those of Complainant.
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 disputed domain name is confusingly similar to Complainant’s mark as it contains the mark plus the descriptive acronym “ar” (short for “accounts receivable”) and the “.com” gTLD. Similar changes to a complainant’s mark have failed to sufficiently distinguish a domain name from a mark for the purposes of Policy ¶4(a)(i). 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). The Panel therefore finds that the <arbittrex.com> domain name is confusingly similar to the BITTREX mark under Policy ¶4(a)(i).
Complainant has not authorized Respondent to use its mark in any way. Respondent is not known by the disputed domain name: where a response is lacking, relevant information includes the WHOIS and any other assertions by a complainant regarding the nature of its relationship with a respondent. See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). Here, the WHOIS identifies “Andrii Berezutskyi” as the registrant. Accordingly, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent does not use the disputed domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to offer competing cryptocurrency services. Using a confusingly similar domain name to offer competing services generally fails to indicate a bona fide offering of goods or services or legitimate noncommercial or fair use. See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). As such, the Panel finds that Respondent fails to use the disputed domain name in connection with any bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have 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 offers products and services that compete with those of Complainant. Thus creates a likelihood for confusion as to the source, sponsorship, affiliation, or endorsement of the disputed domain name for Respondent’s commercial gain. Using a disputed domain name that trades upon the goodwill of a complainant for commercial gain can evince bad faith under Policy ¶ 4(b)(iv). See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). Accordingly, the Panel finds bad faith registration and use under Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <arbittrex.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: November 28, 2018
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