Bittrex, Inc. v. Kumur Kuzucu
Claim Number: FA1901001827544
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is Kumur Kuzucu (“Respondent”), United Arab Emirates.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bittrex-login.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.
Hon. Karl V. Fink (Ret.) as Panelist
Complainant submitted a Complaint to the Forum electronically on January 29, 2019; the Forum received payment on January 29, 2019.
On January 30, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <bittrex-login.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the names. 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 31, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 20, 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-login.com. Also on January 31, 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 February 22, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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, 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”) (e.g. Reg. No. 016727109, registered Oct. 13, 2017) and the United States Patent Office (“USPTO”) (e.g. Reg. No. 5,380,786, registered on Jan. 16, 2018). Respondent’s <bittrex-login.com> domain name is confusingly similar to Complainant’s mark as Respondent merely adds a hyphen, the generic or descriptive term “login” and the generic top-level domain (“gTLD”) “.com” to Complainant’s mark.
Respondent has no rights or legitimate interests in the <bittrex-login.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 does not use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name in furtherance of a phishing scheme. In addition, Respondent is using the disputed domain name in connection with the installation of malware.
Respondent registered and uses the disputed domain name in bad faith because Respondent uses the disputed domain name in connection with a phishing scheme. Respondent also uses the disputed domain name in connection with malware installation. Respondent had actual knowledge of Complainant’s mark when it registered the <bittrex-login.com> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <bittrex-login.com> domain name.
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.”).
Complainant asserts rights in the BITTREX mark based upon registration with the EUIPO (e.g. Reg. No. 016727109, registered Oct. 13, 2017) and the USPTO (e.g. Reg. No. 5,380,786, registered on Jan. 16, 2018). Registration of a mark with multiple trademark organizations is sufficient to establish rights in said mark per Policy ¶ 4(a)(i). 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.). The Panel finds that Complainant has rights in the BITTREX mark per Policy ¶ 4(a)(i).
Complainant next claims that Respondent’s <bittrex-login.com> domain name is confusingly similar to Complainant’s BITTREX mark. Specifically, Complainant argues Respondent merely adds a hyphen, a generic or descriptive term, and a gTLD to Complainant’s BITTREX mark. Additions of generic or descriptive terms, hyphen, or a gTLD does not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.); see also nnomed Techs., Inc. v. DRP Servs., FA 221171 (Forum Feb. 18, 2004) (finding that hyphens and top-level domains are irrelevant for purposes of the Policy). The Panel finds that the <bittrex-login.com> is confusingly similar to Complainant’s BITTREX mark per Policy ¶ 4(a)(i).
Complainant has proved this element.
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), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Complainant argues that Respondent has no rights or legitimate interests in the <bittrex-login.com> domain name. Specifically, Complainant argues Respondent is not licensed or authorized to use the BITTREX mark and is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). 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.). Additionally, lack of authorization to use a complainant’s mark may demonstrate the respondent is not commonly known by the disputed domain name. 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). The WHOIS information of record identifies Respondent as “Kumur Kuzucu,” and there is no other evidence to suggest Respondent was authorized to use the BITTREX mark. The Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant argues Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Complainant claims Respondent uses the <bittrex-login.com> domain name in connection with a phishing scheme. Using a disputed domain name to conduct a phishing scheme is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use of the domain name under 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). Complainant provides a screenshot of the disputed domain name’s resolving website which is identified on the Ethereum Scam Database as being in use in connection with a phishing scam. The Panel finds that such use is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
Complainant contends that Respondent links users visiting the disputed domain name to a webpage that attempts to download malware on Internet users’ computers. Use of a disputed domain name to distribute malicious software to users’ computers does not constitute a bona fide offering or a legitimate use per Policy ¶¶ 4(c)(i) or (iii). See Snap Inc. v. Domain Admin / Whois Privacy Corp., FA 1735300 (Forum July 14, 2017) (“Use of a disputed domain name to offer malicious software does not constitute a bona fide offering or a legitimate use per Policy ¶ 4(c)(i) & (iii).”). Here, Complainant contends the Iris platform (“Iris”), offered by Domain Tools, is a flagship threat intelligence and investigation platform that combines enterprise-grade domain and DNS-based intelligence to help security teams investigate potential cybercrime and cyberespionage. Iris assessed the risk score that the Disputed Domain is used in connection with malware installation at 99/100. The Panel finds that the Respondent lacks rights or legitimate interests with respect to the disputed domain name pursuant to Policy ¶¶ 4(c)(i) or (iii).
Complainant has proved this element.
Complainant argues that Respondent registered or uses the <bittrex-login.com> in bad faith as Respondent uses the disputed domain name in furtherance of a phishing scheme. Use of a disputed domain name to conduct a phishing scheme for respondent’s commercial gain may evince a finding of bad faith pursuant to Policy ¶ 4(b)(iv). See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use per Policy ¶ 4(b)(iv). As previously mentioned, Complainant provides a screenshot of the disputed domain name’s resolving website which is identified on the Ethereum Scam Database as being in use in connection with a phishing scheme. This is evidence that Respondent registered and uses the <bittrex-login.com> domain name in bad faith per Policy ¶ 4(b)(iv).
Complainant contends that Respondent links users visiting its domain name to a webpage which attempts to download malware on Internet users’ computers. Use of malicious software constitutes bad faith per Policy ¶ 4(a)(iii). See Twitter, Inc. v. Kiribati Media / Kiribati 200 Media Limited, FA1502001603444 (Forum Mar. 19, 2015) (“Using the disputed domain name to download malicious software into unsuspecting viewers’ computers evidences Respondent’s bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). Complainant contends the Iris platform (“Iris”), offered by Domain Tools, is a flagship threat intelligence and investigation platform that combines enterprise-grade domain and DNS-based intelligence to help security teams investigate potential cybercrime and cyberespionage. Iris assessed the risk score that the Disputed Domain is used in connection with malware installation at 99/100. The Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii).
Complainant argues that Respondent registered the <bittrex-login.com> domain name with actual knowledge of Complainant’s rights in the BITTREX mark. Registering a domain name with knowledge of another’s rights therein may be indicative of bad faith under Policy ¶4(a)(iii). See Norgren GmbH v. Domain Admin / Private Registrations Aktien Gesellschaft, FA1501001599884 (Forum Feb. 25, 2014) (holding that the respondent had actual knowledge of the complainant and its rights in the mark, thus demonstrating bad faith registration under Policy ¶ 4(a)(iii), where the respondent was using the disputed domain name to purposely host links related to the complainant’s field of operation); see also Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration). Here, Complainant argues that Respondent’s knowledge of Complainant’s mark prior to registering <bittrex-login.com> is apparent from the notoriety of Complainant’s trademark and from Respondent’s use of the domain name to conduct a phishing scam. The Panel finds that Respondent registered the <bittrex-login.com> domain name with actual knowledge of Complainant’s BITTREX mark, and registered and uses the domain name in bad faith per Policy ¶ 4(a)(iii).
Complainant has proved this element.
DECISION
Complainant 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-login.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
Dated: February 25, 2019
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