Bittrex, Inc. v. Kabir S Rawat
Claim Number: FA2209002011385
Complainant is Bittrex, Inc. ("Complainant"), United States, represented by Michael Oakes of Hunton Andrews Kurth LLP, United States. Respondent is Kabir S Rawat ("Respondent"), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bittrex.org>, registered with GoDaddy.com, LLC.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to Forum electronically on September 9, 2022; Forum received payment on September 9, 2022.
On September 9, 2022, GoDaddy.com, LLC confirmed by email to Forum that the <bittrex.org> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 September 14, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 4, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@bittrex.org. Also on September 14, 2022, the Written Notice of the Complaint, notifying Respondent of the email 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, Forum transmitted to the parties a Notification of Respondent Default.
On October 10, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 a digital asset exchange that serves retail and institutional clients. Complainant uses the BITTREX mark in connection with its services and owns registrations for BITTREX in standard character form in the United States, the European Union, and many other jurisdictions. The United States registration indicates that Complainant has used the mark since 2014.
Respondent is the registrant of the disputed domain name <bittrex.org>, which was registered in May 2019. The domain name is being used for a website that offers the domain name for sale and contains no other content. Complainant states that it received an unsolicited email from Respondent offering to sell the disputed domain name. After Complainant replied to that email, indicating an interest in acquiring the domain name, Respondent quoted a price of $25,000. Complainant states that Respondent is not commonly known by the domain name, is not a licensee of Complainant, and is not authorized to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <bittrex.org> is identical or confusingly similar to its BITTREX mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is identical to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <bittrex.org> corresponds to Complainant's registered BITTREX trademark, with the ".org" top-level domain appended thereto. The addition of a top-level domain such as ".org" is normally disregarded for purposes of assessing similarity or identicality under Paragraph 4(a)(1) of the Policy. See, e.g., Bittrex, Inc. v. Pavel Romanov / Private Person, FA 1801812 (Forum Sept. 13, 2018) (finding <bittrex.capital> identical to BITTREX); Bittrex, Inc. v. Li Xiaozhou, FA 1774908 (Forum Apr. 19, 2018) (Forum Apr. 19, 2018) (finding <bittrex.net> identical to BITTREX); PayPal, Inc. & Hyperwallet Systems, Inc. v. Kabir S Rawat, FA 1875638 (Forum Jan. 16, 2020) (finding <hyperwallet.org> identical or confusingly similar to HYPERWALLET); 3M Co. v. Kabir S Rawat, FA 1725052 (Forum May 9, 2017) (finding <nexcare.org> confusingly similar to NEXCARE). The Panel considers the disputed domain name to be identical to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization. Respondent does not appear to have made any active use of the domain name other than to offer it for sale. Such use ordinarily does not give rise to rights or legitimate interests under the Policy. See, e.g., Google LLC v. Mingde wang, FA 1937336 (Forum Apr. 16, 2021) (finding lack of rights or interests in similar circumstances); PayPal, Inc. & Hyperwallet Systems, Inc. v. Kabir S Rawat, supra (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(i) of the Policy, bad faith may be shown by evidence that a domain name was acquired "primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent's] documented out-of-pocket costs directly related to the domain name."
Respondent registered a domain name corresponding to Complainant's registered mark. Respondent is offering the domain name for sale, both generally and in a communication directed at Complainant, at a price that the Panel infers to be in excess of Respondent's out-of-pocket costs. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., PayPal, Inc. & Hyperwallet Systems, Inc. v. Kabir S Rawat, supra (finding bad faith registration and use in similar circumstances). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bittrex.org> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: October 11, 2022
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