Rockitcoin LLC v. skilz web
Claim Number: FA2106001951462
Complainant is Rockitcoin LLC (“Complainant”), represented by Tracy Katz Muhl of Fox, Swibel, Levin & Carroll LLP, Illinois, USA. Respondent is skilz web (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <rockitcoinfx.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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 17, 2021; the Forum received payment on June 17, 2021.
On June 17, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <rockitcoinfx.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 June 22, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 12, 2021 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@rockitcoinfx.com. Also on June 22, 2021, 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 July 15, 2021, 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 operates specialized ATM banking machines that can be used to allow customers to purchase and sell cryptocurrency, including depositing such cryptocurrency into unique cryptocurrency wallets. Complainant has rights in the ROCKITCOIN mark through its registration of the mark in the United States in 2017.
Complainant alleges that the disputed domain name is confusingly similar to its ROCKITCOIN mark as it incorporates the mark in its entirety and merely adds the descriptive abbreviation for foreign exchange “FX.”
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Respondent been authorized by Complainant to use the ROCKITCOIN mark. Additionally, Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services as Respondent purports to use it to market competing services, but uses it in furtherance of a fraudulent phishing scheme.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent passes off as Complainant to purport to offer competitive services, but engages in a fraudulent scheme. Respondent also failed to respond to Complainant’s cease and desist letters. Finally, Respondent registered the disputed domain name using false WHOIS information.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark ROCKITCOIN dating back to at least 2017 and uses it to operate specialized ATM machines for cryptocurrencies.
The disputed domain name was registered in 2020.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain name to resolve to a web site that offers services that compete with those of Complainant; it also uses the disputed domain name in furtherance of a fraudulent 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The disputed domain name incorporates Complainant’s ROCKITCOIN mark in its entirety and merely adds the descriptive abbreviation for foreign exchange “FX.” Adding a descriptive term and a gTLD to a mark fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) (“[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i).”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: when a response is lacking, relevant WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”). Here, the WHOIS information of record lists the registrant as “Skilz Web”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The resolving website purports to offer services that compete with those of Complainant, but is used to further a fraudulent phishing scheme. Specifically, Complainant provides evidence showing that the resolving website purports to offer services similar to those of Complainant. Furthermore, Complainant provides evidence showing that one of Complainant’s customers contacted Respondent via text message and requested help making a purchase; Respondent’s representative instructed the customer to use a nearby Bitcoin ATM (such as a RockitCoin ATM) to make a “purchase” or “deposit”; Respondent’s representative instructed the Customer to transmit funds to a new wallet address, one not owned by the customer; Respondent’s representative falsely represented that the customer would control the new wallet address by stating that the new wallet address was an “upgraded address” to the customer’s existing digital wallet, which was not the case. Using a confusingly similar domain name to promote competing services, or to further a fraudulent phishing scheme is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Coachella Music Festival, LLC v. josh greenly / All Access Tickets, FA1507001629217 (Forum Aug. 10, 2015) (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 as required under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), where the respondent was using the disputed domain name to host a web page that featured links to services that competed with those of the complainant); see also 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)”); see also DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”); see also Goodwin Procter LLP v. GAYLE FANDETTI, FA 1738231 (Forum Aug. 8, 2017) (“[T]he Domain Name has been used in an attempted fraud. As such it cannot have been registered for a legitimate purpose.”). Therefore, the Panel finds that Respondent fails to use the disputed domain name to make a 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 purports to offer competing services. This can demonstrate bad faith per Policy ¶¶ 4(b)(iii) and/or 4(b)(iv). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum Jan. 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)); see also Asbury Auto Group Inc v. Tex. Int'l Prop Assocs FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to compete with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of a competing business and was therefore evidence of bad faith and use); see also 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).”). Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶¶ 4(b)(iii) and/or 4(b)(iv).
Further, also as already noted, Respondent uses the disputed domain name in furtherance of a fraudulent phishing scheme. This is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Wells Fargo & Co. v. Maniac State, FA 608239 (Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant’s customers); see also Hess Corp. v. GR, FA 770909 (Forum Sept. 19, 2006) (finding that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name); see also United Parcel Service of America, Inc. v. Jamie Hans FA1901001826973 (Forum Feb. 25, 2019) (“Respondent registered two domain names that combine Complainant's well-known mark with generic terms relating to Complainant's business, and is using them to impersonate Complainant, presumably for fraudulent purposes. Such conduct is indicative of bad faith registration and use under the Policy.”). Consequently the Panel finds that Respondent has registered and used the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <rockitcoinfx.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 15, 2021
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