Bittrex, Inc. v. Protection of Private Person / Sergei Nesmiyanov / Private Person
Claim Number: FA1811001816932
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is Protection of Private Person / Sergei Nesmiyanov / Private Person (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <bilttrex.co> and <bitlttrex.com>, registered with Key-Systems GmbH and Registrar of Domain Names REG.RU LLC, respectively.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 16, 2018; the Forum received payment on November 16, 2018.
On November 20, 2018, Key-Systems GmbH confirmed by e-mail to the Forum that the <bilttrex.co> domain name is registered with Key-Systems GmbH and that Respondent is the current registrant of the name. On December 21, 2018, Registrar of Domain Names REG.RU LLC confirmed by e-mail to the Forum that the <bitlttrex.com> 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 and Key-Systems GmbH have verified that Respondent is bound by the Registrar of Domain Names REG.RU LLC and Key-Systems GmbH registration agreements and have thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On December 14, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 3, 2019 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@bilttrex.co, and postmaster@bitlttrex.com. Also on December 14, 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 January 7, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson 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 names be transferred from Respondent to Complainant.
A. Complainant
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”) (Reg. No. 5,380,786, registered Jan. 16, 2018). Respondent’s <bilttrex.co> and <bitlttrex.com> domain names are confusingly similar to the BITTREX mark as they each add the letter “l” and either the “.com” generic top-level domain (“gTLD”) or the “.co” country code top-level domain (“ccTLD”).
Respondent has no rights or legitimate interests in the <bilttrex.co> and <bitlttrex.com> domain names. Respondent is not commonly known by the disputed domain names, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the domain names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, the website at the <bilttrex.co> domain name is currently an exact replica of Complainant’s website, including a copy of Complainant’s own login page, which Respondent uses to phish for information. Likewise, Respondent uses the <bitlttrex.com> domain name to also engage in a phishing scheme.
Respondent registered and uses the <bilttrex.co> and <bitlttrex.com> domain names in bad faith. Respondent registered and uses the <bilttrex.co> domain name to direct Internet users to a website that mimics Complainant’s website in order to confuse users into believing that Respondent is Complainant or is otherwise affiliated or associated with Complainant. Respondent creates this confusion to phish for users’ login credentials. Relatedly, Respondents uses the <bitlttrex.com> domain name in connection with a phishing scheme. Further, such use of the BITTREX mark, or a simple misspelling of the mark, in the domain names and on the resolving webpage of the <bilttrex.co> domain name indicates that Respondent had actual knowledge of Complainant’s rights in the mark at the time it registered the domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Bittrex, Inc. of Seattle, Washington, USA. Complainant is the owner of domestic and international registrations for the mark BITTREX, which it has continuously used in commerce since at least as early as February 2014, in connection with its cryptocurrency exchange.
Respondent is Protection of Private Person / Sergei Nesmiyanov / Private Person of Murmansk/Moscow, Russia. Respondent’s registrar’s addresses are in Germany and Russia. The Panel notes that Respondents registered the <bilttrex.co> and <bitlttrex.com> domain names on or about September 19, 2018 and October 10, 2018, respectively.
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.”).
Preliminary Issue: Language of Proceeding
Complainant contends the disputed domain names are based on the name of an American company, and that the website available at the <bilttrex.co> domain name uses English characters and words therein, suggesting that Respondent is at least proficient in the English language. Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
Complainant claims rights in the BITTREX mark through its registration of the mark with the USPTO (Reg. No. 5,380,786, registered Jan. 16, 2018). Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”). The Panel here finds that Complainant has established rights in the BITTREX mark for the purposes of Policy ¶ 4(a)(i).
Complainant next argues that Respondent’s <bilttrex.co> and <bitlttrex.com> domain names are identical or confusingly similar to Complainant’s mark as they each add the letter “l” and either the “.com” gTLD or the “.co” ccTLD. Similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶ 4(a)(i). See Coachella Music Festival, LLC v. Domain Administrator / China Capital Investment Limited, FA 1734230 (Forum July 17, 2017) (“The addition of letters—particularly of those that create a common misspelling—fails to sufficiently distinguish a domain name from a registered mark.”); see also Dell Inc. v. Protection of Private Person / Privacy Protection, FA 1681432 (Forum Aug. 1, 2016) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs.”). The Panel here finds that the disputed domain names are confusingly similar to the BITTREX mark under Policy ¶ 4(a)(i).
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel recognizes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). The Complainant has met this burden.
Complainant contends that Respondent has no rights or legitimate interests in the <bilttrex.co> and <bitlttrex.com> domain names. 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). The WHOIS identifies “Sergei Nesmiyanov / Private Person / Protection of Private Person” as the registrant for the domain names. Complainant asserts that no evidence exists to show that Respondent has ever been legitimately known by the BITTREX mark. Panels may use these assertions as evidence of lacking rights or legitimate interests. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). Complainant alleges that Respondent has never been legitimately affiliated with Complainant, has never been known by the domain names prior to their registration, and Complainant has not given Respondent permission to use the mark in any manner. The Panel here finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).
Next, Complainant claims that the website at the <bilttrex.co> domain name is currently an exact replica of Complainant’s website, including a copy of Complainant’s own login page. Using a confusingly similar domain name to pass off as a complainant can evince a failure to make a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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).”). Complainant provides screenshots of the resolving domain along with its own website, which shows that the disputed domain does appear to mimic Complainant’s website. The Panel here finds that Respondent attempts to pass off as Complainant, failing to use the <bilttrex.co> domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).
Additionally, Complainant argues that Respondent uses the <bilttrex.co> and <bitlttrex.com> domain names in connection with phishing scams. Phishing attempts also support a finding of failure to make a bona fide offering of goods or services or legitimate noncommercial or fair use. See Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Regarding the <bilttrex.co> domain name, Complainant claims that Respondent mimics Complainant’s own login screen in efforts to obtain users’ login credentials. Complainant also provides a copy of the message it received when attempting to access the <bitlttrex.com> domain name, which warns users of a deceptive website. Further, Complainant states that the Iris score for the risk associated with the domain names are high, indicating that Respondent uses the domain names to phish for information. The Panel here finds that Respondent uses the domain names in connection with phishing schemes per Policy ¶¶ 4(c)(i) and (iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).
The Complainant has proven this element
Complainant argues that Respondent registered and uses the <bilttrex.co> and <bitlttrex.com> domain names in bad faith by creating a likelihood for confusion as to the source, sponsorship, affiliation, or endorsement of the domain names for its own 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 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 Perot Sys. Corp. v. Perot.net, FA 95312 (Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain). As previously noted, Complainant provides a screenshot of the resolving website for the <bilttrex.co> domain name, which shows that Respondent appears to mimic Complainant’s own website. The webpage for the <bitlttrex.com> domain name populates a warning message when users attempt to access the domain name. The Panel here finds that Respondent attempts to commercially benefit off Complainant’s mark in bad faith under Policy ¶ 4(b)(iv).
Complainant further claims that Respondent uses the <bilttrex.co> and <bitlttrex.com> domain names in connection with phishing schemes. Using a confusingly similar domain name to phish for information can provide evidence of bad faith registration and use within the meaning of Policy ¶ 4(a)(iii). See 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).”). The screenshot of the <bilttrex.co> domain name appears to mimic Complainant’s own login screen, which Complainant claims is to obtain users’ login credentials. Complainant also claims to receive a warning message when attempting to access the <bitlttrex.com> domain name, and provides the Panel with a copy of the message. Further, Complainant states that the Iris score for the risk associated with the domain names are high, indicating that Respondent uses the domain names to phish for information. The Panel here finds that Complainant sufficiently alleged and provided unrefuted evidence of Respondent’s bad faith registration and use per Policy ¶ 4(a)(iii).
Complainant also claims that Respondent had actual knowledge of Complainant’s BITTREX mark at the time it registered the domain names. Actual knowledge of a complainant’s rights in a mark prior to registering an identical or confusingly similar domain name can evince bad faith under Policy ¶ 4(a)(iii). See 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). Here, Complainant contends that Respondent must have had actual knowledge of the mark based on Respondent’s use of the distinct BITTREX mark in its domain names and mimicked Complainant’s own webpage on the resolving webpage for the <bitlttrex.co> domain name. The Panel agrees with Complainant and finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <bilttrex.co> and <bitlttrex.com> domain names be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: January 21, 2019
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