Bittrex, Inc. v. Amanda Lomendes Lopes
Claim Number: FA1901001823482
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is Amanda Lomendes Lopes (“Respondent”), Brazil.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bittrex-es.com>, 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 January 2, 2019; the Forum received payment on January 2, 2019.
On January 3, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <bittrex-es.com> 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 January 7, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 28, 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@bittrex-es.com. Also on January 7, 2019, 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 31, 2019, 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 that operates one of the leading cryptocurrency exchanges in the world under the BITTREX mark.
Complainant registered the BITTREX mark with multiple registries including the European Union Intellectual Property Office (“EUIPO”) and the United States Patent Office (“USPTO”).
Respondent’s <bittrex-es.com> domain name is confusingly similar to Complainant’s trademark as it incorporates Complainant’s entire BITTREX mark, merely adding a hyphen, the letters “es”, and appending the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <bittrex-es.com> domain name. Respondent is not licensed or authorized to use Complainant’s BITTREX mark and is not commonly known by the disputed domain name. Additionally, Respondent doesn’t use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent holds the domain name to facilitate a phishing scheme.
Respondent registered or uses the <bittrex-es.com> domain name in bad faith. Respondent’s domain name has been assessed by third party security facilities to be connected with a malicious purpose. Furthermore, Respondent had actual knowledge of Complainant’s mark when it registered the <bittrex-es.com> 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 registered and uses the at-issue domain name 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 EUIPO registration is conclusive evidence of Complainant’s rights in a mark under Policy ¶ 4(a)(i) as is the mark’s registration with the USPTO. See Astute, Inc. v. Raviprasath C / Astute Solution Pvt Ltd, FA 1546283 (Forum Apr. 9, 2014) (finding that registrations with two major trademark agencies is evidence enough of Policy ¶ 4(a)(i) rights in the ASTUTE SOLUTIONS mark.).
Respondent’s <bittrex-es.com> domain name contains Complainant’s BITTREX trademark followed by a hyphen and the letters “es,” the geographic identifier for Spain, and all followed by the descriptive top-level domain name “.com.” The differences between Complainant’s trademark and the <bittrex-es.com> 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 <bittrex-es.com> domain name is confusingly similar to Complainant’s BITTREX trademark. See AbbVie Inc. v. Season Advertising, S.L., FA1704001727071 (Forum Jun. 12, 2017) (finding confusing similarity where the disputed domain name <abbvie-hcv.com> incorporated complainant’s entire mark and appended “a hyphen, followed by two or three additional letters and the gTLD ‘.com’”).
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 “Amanda Lomendes Lopes” and the record before the Panel contains no evidence that otherwise tends to prove that Respondent is commonly known by the <bittrex-es.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <bittrex-es.com> 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 and as elaborated below regarding bad faith, Respondent uses the domain name to facilitate 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 Virtu Financial Operating, LLC v. Lester Lomax, FA1409001580464 (Forum Nov. 14, 2014) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii) where the respondent was using the disputed domain name to phish for Internet users personal information by offering a fake job posting on the resolving website).
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, bad faith circumstances are present from which the Panel concludes that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
As mentioned above regarding rights and legitimate interests, Respondent likely registered and uses the domain name to perpetuate a phishing scheme. The third party Ethereum Scam Database identifies the at-issue domain name as being used in connection with a phishing scheme. Furthermore, the IRIS security platform classifies the at-issue domain name as having a high Proximity Score, further indicating that the domain name has a malicious purpose, i.e. phishing. Importantly, Respondent fails to present any contrary evidence or even deny Complainant’s assertion that the <bittrex-es.com> domain name exists to support a scam. Using the domain name in furtherance of a phishing scheme indicates Respondent’s bad faith registration and use of the at-issue domain name pursuant to Policy ¶ 4(a)(iii). See Bittrex, Inc. v. Tuomo, FA1810001812163 (Forum Nov. 26, 2018) (finding Iris evidence showing domain name’s high risk score for phishing and malware and inclusion on Ethereum Scam Database demonstrates bad faith); see also, Bittrex, Inc. v. Protection of Private Person/Privacy Protection/ Privacy protection service - whoisproxy.ru, FA1712001762332 (Forum Jan. 15, 2018) (use of domains in connection with phishing scam wherein respondent passed itself off as complainant is evidence of bad faith under the Policy).
Finally, Respondent had actual knowledge of Complainant’s rights in the BITTREX mark when it registered <bittrex-es.com>. Respondent’s actual knowledge is evident from the notoriety of Complainant’s trademark and from the domain name’s use to further a phishing scheme. Registering and using the confusingly similar <bittrex-es.com> 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 <bittrex-es.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: January 31, 2019
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