Bittrex, Inc. v. Milen Radumilo
Claim Number: FA1904001836988
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is Milen Radumilo (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bittrex24.com>, registered with Tucows Domains 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 1, 2019; the Forum received payment on April 1, 2019.
On April 2, 2019, Tucows Domains Inc. confirmed by e-mail to the Forum that the <bittrex24.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 April 3, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 23, 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@bittrex24.com. Also on April 3, 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 April 24, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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
1. Complainant, Bittrex, Inc., is a U.S.-based company which uses the BITTREX mark to operate one of the leading cryptocurrency exchanges in the world. Complainant has rights in the BITTREX mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 5,380,786, registered Jan. 16, 2018). Respondent’s <bittrex24.com>[i] domain name is confusingly similar to Complainant’s mark as it fully incorporates the BITTREX mark while adding the number “24” and the “.com” generic top-level domain (“gTLD”).
2. Respondent has no rights or legitimate interests in the <bittrex24.com> domain name. Respondent is not commonly known by the domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the BITTREX mark.
3. Respondent also does not use the domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the domain name to redirect users to various websites using the fast-flux DNS (“FFDNS”) scheme, where Respondent either attempts to install malware onto users’ computers, phish for information, or display links to competing services.
4. Respondent registered and uses the <bittrex24.com> domain name in bad faith. Respondent offers the domain name for sale for $688, an amount in excess of registration costs.
5. Further, Respondent uses the <bittrex24.com> domain name to disrupt Complainant’s business for Respondent’s commercial gain by redirecting Internet users using a FFDNS scheme to websites that either, on information and belief, attempts to install malware onto the user’s computer and phish for the user’s financial information, or display links to services, some of which compete with Complainant’s business.
6. Additionally, Respondent’s registration of the domain name, which fully incorporates the BITTREX mark, shows that Respondent had actual knowledge of Complainant’s rights in the BITTREX mark prior to registering the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the BITTREX mark. Respondent’s domain name is confusingly similar to Complainant’s BITTREX mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <bittrex24.com> domain name and that Respondent registered and uses the domain name 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 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”).
Complainant has rights in the BITTREX mark through its registration of the mark with the USPTO (Reg. No. 5,380,786, registered Jan. 16, 2018). Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018). Accordingly, Complainant has established rights in the BITTREX mark for the purposes of Policy ¶ 4(a)(i).
Next, Complainant argues that Respondent’s <bittrex24.com> domain name is confusingly similar to Complainant’s mark as it fully incorporates the BITTREX mark while adding the number “24” and the “.com” gTLD. Similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. network admin, FA 1622138 (Forum July 11, 2015) (“The addition, deletion, and switching of . . . numbers in domain names do not remove Respondent’s domain names from the realm of confusing similarity in relation to Complainant’s BLOOMBERG mark pursuant to Policy ¶ 4(a)(i).”); see also Blue Cross and Blue Shield Association v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶4(a)(i) analysis because domain name syntax requires TLDs.”). The Panel holds that the <bittrex24.com> domain name is confusingly similar to the BITTREX mark under Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <bittrex24.com> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant contends that Respondent has no rights or legitimate interests in the <bittrex24.com> domain name, as Respondent is not commonly known by the domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the BITTREX mark. Relevant information includes the WHOIS, assertions by a complainant regarding the nature of its relationship with a respondent, and other evidence in the record to support these assertions. See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”). The WHOIS identifies “Milen Radumilo” as the registrant, and nothing in the record indicates that Complainant authorized Respondent to use the BITTREX mark for any purpose. Accordingly, the Panel holds that Respondent is not commonly known by the <bittrex24.com> domain name under Policy ¶ 4(c)(ii).
Next, Complainant argues that Respondent uses the <bittrex24.com> domain name to redirect users to various websites using the fast-flux DNS (“FFDNS”) scheme, where Respondent either attempts to install malware onto users’ computers, phish for information, or display links to competing services. Using a domain name for the foregoing purposes is insufficient to confer rights and legitimate interests in a domain name under the Policy. See Bittrex, Inc. v. Domain Privacy Services, FA 1786849 (Forum June 15, 2018) (“Using a disputed domain name to operate an FFDNS scheme and distribute malicious software or phish for users’ information 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 also Barclays PLC v. Antwan Barnes, FA 1806411 (Forum Oct. 20, 2018) (“Using a domain name to offer links to services in direct competition with a complainant does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).”). Complainant provides various screenshots of the resolving third-party webpages, one of which is a “Microsoft Warning Alert” requiring users to call a phone number to prevent their information from being stolen, and another displays various links such as “Forex Research” and “Best Forex Brokers.” Complainant also provides an article on the FFDNS scheme. Accordingly, the Panel finds that Respondent’s use of the <bittrex24.com> domain name fails to confer rights and legitimate interests in the domain name for the purposes of Policy ¶¶ 4(c)(i) or (iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant claims that Respondent offers the <bittrex24.com> domain name for sale for $688, an amount in excess of registration costs. Offering to sell a confusingly similar domain name incorporating the mark of another shows bad faith under Policy ¶ 4(b)(i). See Airbnb, Inc. v. Super Privacy Service LTD c/o Dynadot, FA 1821386 (Forum Jan. 10, 2019) (“Complainant argues that Respondent registered and uses the <airbnbb.com> domain name in bad faith by offering it for sale. The Panel agrees . . . . “). Complainant points to the WHOIS information, where it displays the message “bittrex24.com is for sale! This domain is listed for sale at one of our partner sites for $688.” Accordingly, Respondent’s general offer to sell the domain name is evidence of bad faith per Policy ¶ 4(b)(i).
Next, Complainant claims that Respondent uses the <bittrex24.com> domain name to disrupt Complainant’s business for Respondent’s commercial gain by redirecting Internet users using a FFDNS scheme to websites that either attempt to install malware onto the user’s computer and phish for the user’s financial information, or display links to services, some of which compete with Complainant’s business. Such use is evidence of bad faith under Policy ¶¶ 4(b)(iii) & (iv). See United States Postal Service v. Dursun BAYRAK, FA 1788459 (Forum June 24, 2018) (“Respondent uses the at-issue domain name to reference various third party websites designed to distribute malware and perpetrate phishing schemes. [. . .] Respondent’s use of the domain name is thus disruptive to Complainant’s business and indicates Respondent’s bad faith per Policy ¶¶ 4(b)(iii) and (iv), and otherwise.”); see also Harry Winston, Inc. v. Domain Admin / Whois Privacy Corp., FA 1749276 (Forum Oct, 18, 2017) (finding the respondent acted in bad faith by using “a technique known as FFDNS to divert internet users to a rotating series of webpages unrelated to or in competition with Complainant’s business, some of which attempt to install malware onto users’ computers.”). Complainant provides various screenshots of the resolving third-party webpages, one of which is a “Microsoft Warning Alert” requiring users to call a phone number to prevent their information from being stolen, and another displays various links such as “Forex Research” and “Best Forex Brokers.” Complainant also provides an article on the FFDNS scheme. Accordingly, the Panel agrees that Respondent disrupts Complainant’s business and attempts to commercially benefit off Complainant’s mark in bad faith under Policy ¶¶ 4(b)(iii) & (iv).
Further, Complainant argues that Respondent had actual knowledge of Complainant’s rights in the BITTREX mark at the time of registering the <bittrex24.com> domain name. Actual knowledge of a complainant's rights in a mark prior to registering a confusingly similar domain name shows bad faith under Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). Complainant contends that Respondent’s knowledge can be inferred given Respondent’s registration of the domain name incorporating the exact BITTREX mark. The Panel agrees and holds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration under Policy ¶ 4(a)(iii).
The Panel finds Complainant has satisfied 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 <bittrex24.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: May 6, 2019
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