Bittrex, Inc. v. Josh Cram
Claim Number: FA1901001824080
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is Josh Cram (“Respondent”), Hawaii, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <careerbittrex.com> (‘the Domain Name’), registered with URL Solutions, Inc..
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 January 7, 2019; the Forum received payment on January 7, 2019.
On January 9, 2019, URL Solutions, Inc. confirmed by e-mail to the Forum that the <careerbittrex.com> domain name is registered with URL Solutions, Inc. and that Respondent is the current registrant of the name. URL Solutions, Inc. has verified that Respondent is bound by the URL Solutions, 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 9, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 29, 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@careerbittrex.com. Also on January 9, 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 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 is the owner of the trade mark BITTREX, registered, inter alia, in the USA with first use recorded as 2014. It owns bittrex.com.
The Domain Name registered in 2018 is confusingly similar to Complainant’s BITTREX mark, wholly incorporating it and adding only the generic term ‘career’ and the gTLD .com none of which distinguish the Domain Name from Complainant’s mark.
Respondent is not commonly known by the BITTREX mark and has no permission from Complainant to use Complainant’s mark. The Domain Name has been used to point to Complainant’s web site and for suspected malware. This cannot be a bona fide offering of goods and services or a noncommercial legitimate or fair use. Respondent has no rights or legitimate interests in the Domain Name.
The pointing of the Domain Name to Complainant’s site shows Respondent is aware of Complainant and its business. The Domain Name has been registered and used in bad faith as it deprives Complainant of the use of the mark and has been used for suspected malware.
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.
The Domain Name registered in 2018 has been pointed to Complainant’s web site.
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 Name consists of Complainant's BITTREX mark (which is registered in USA for financial services with first use recorded as 2014), the generic term ‘career’ and the gTLD .com which do not prevent confusing similarity between the Domain Name and Complainant’s mark.
Previous panels have found confusing similarity when a respondent merely adds a generic term to a Complainant's mark. See PG&E Corp. v. Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The Panel agrees that the addition of the generic term ‘career’ to Complainant's mark does not distinguish the Domain Name from Complainant's trade mark pursuant to the Policy.
The gTLD .com does not serve to distinguish a Domain Name from a Complainant’s mark pursuant to the Policy. 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 Name is 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 authorized the use of its mark. Respondent has not answered this Complaint and there is no evidence or reason to suggest Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 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 Domain Name resolves to Complainant’s own site without permission. There is no indication that there is no authorization from Complainant for this connection suggesting the Domain Name is connected with Complainant. See Direct Line Ins. Plc v. Low-cost-domain, FA 1337658 (Forum Sept 8, 2010) (pointing to Complainant’s own site is not a bona fide offering of goods or services or a legitimate noncommercial fair use).
As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Respondent has not answered this Complaint or explained why it should be allowed to register a domain name containing Complainant’s mark to point to Complainant’s own web site. The fact that the Domain Name points to Complainant’s own site shows Respondent is aware of Complainant and its business.
In the opinion of the panelist the use made of the Domain Name in relation to the site is confusing and disruptive in that visitors using the Domain Name might reasonably believe it is connected to or approved by Complainant as it redirects to Complainant’s own site. Such registrations are open to misuse and Complainant has presented some evidence that suggests that the Domain Name may be being used for malware. Accordingly, the Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users by means of the Domain Name and has created a likelihood of confusion with Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the Domain Name as a conduit likely to disrupt the business of Complainant under Policy ¶¶ 4 (b)(iii) and (iv). See D Verizon Trademark Servs. LLC v. Boyiko, FA 1382148 (Forum May 12, 2011) and MySpace Inc. v. Gomez, D2007-1231 (WIPO Oct. 17, 2007).
As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <careerbittrex.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: February 2, 2019
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