Bittrex, Inc. v. KireevSergey Valerievich / Kireev / Kenneth Dachi / WhoisProtectService.net / PROTECTSERVICE, LTD.
Claim Number: FA1711001758954
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is KireevSergey Valerievich / Kireev / Kenneth Dachi / WhoisProtectService.net / PROTECTSERVICE, LTD. (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <bittrex.club>, <bittrexworld.club>, and <bittrexcenter.club>, registered with Bizcn.com, Inc.; <bittrex.ltd> and <bittrex.world>, registered with NameCheap, Inc.; and <bittrexservices.info> and <bittrexsolutions.info>, registered with Danesco Trading Ltd.;
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.
The Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 16, 2017; the Forum received payment on November 16, 2017.
On Nov 17, 2017; Nov 19, 2017; Nov 20, 2017, respectively, NameCheap, Inc.; Danesco Trading Ltd.; and Bizcn.com, Inc. confirmed by e-mail to the Forum that the <bittrex.club>, <bittrexworld.club>, and <bittrexcenter.club> domain names are registered with Bizcn.com, Inc.; the <bittrex.ltd> and <bittrex.world> domain names are registered with NameCheap, Inc.; and the <bittrexservices.info> and <bittrexsolutions.info> domain names are registered with Danesco Trading Ltd.; and that Respondent is the current registrant of the names. NameCheap, Inc.; Danesco Trading Ltd.; and Bizcn.com, Inc. have verified that Respondent is bound by the respective registration agreements 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 November 27, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 18, 2017 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.club, postmaster@bittrexcenter.club, postmaster@bittrexworld.club, postmaster@bittrex.ltd, postmaster@bittrex.world, postmaster@bittrexservices.info, postmaster@bittrexsolutions.info. Also on November 27, 2017, 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 December 22, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honourable Neil Anthony Brown QC 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant made the following contentions.
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. See Compl. Ex. D. Complainant has rights in the BITTREX mark through its registrations of the mark with the United Kingdom Intellectual Property Office (“UKIPO”) (e.g., No. UK00003231077, registered Jun. 10, 2017). See Compl. Ex. E.1. Respondent’s <bittrex.club>, <bittrexcenter.club>, <bittrexworld.club>, <bittrex.ltd>, <bittrex.world>, <bittrexservices.info>, and <bittrexsolutions.info> domain names are confusingly similar to Complainant’s BITTREX mark in that each name incorporates the BITTREX mark in its entirety and adds one of the generic top level domains (“gTLDs”) “.club,” “.world,” “info” or “.ltd.” The <bittrexcenter.club>, <bittrexworld.club>, <bittrexservices.info>, and <bittrexsolutions.info> domain names also add generic terms to the mark.
Respondent has no rights or legitimate interests in the <bittrex.club>, <bittrexcenter.club>, <bittrexworld.club>, <bittrex.ltd>, <bittrex.world>, <bittrexservices.info>, and <bittrexsolutions.info> domain names. Respondent is not commonly known by any of the disputed domain names, nor has Complainant authorized or licensed Respondent to use the BITTREX mark in any manner. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent’s <bittrex.club> and <bittrex.world> domain names are used as part of a fraudulent phishing scheme to obtain customers’ UserIDs and passwords. See Compl. Exs. F.1(b) and F.5(b). Respondent’s <bittrexcenter.club> and <bittrex.ltd> domain names direct users to websites that are advertising competing goods and services, specifically goods and services offered by a cryptocurrency or blockchain company. See Compl. Exs. F.3 and F.4. Additionally, Respondent’s <bittrexservices.info>, <bittrexsolutions.info>, and <bittrexworld.club> domain names direct users to a website that purports to be affiliated or sponsored by Complainant by containing articles or press releases issued by or affiliated with “Bittrex.” See Compl. Exs. F.6, F.7, F.2.
Respondent’s <bittrex.club>, <bittrexcenter.club>, <bittrexworld.club>, <bittrex.ltd>, <bittrex.world>, <bittrexservices.info>, and <bittrexsolutions.info> domain names were registered and used in bad faith. Respondent uses the <bittrex.club> and <bittrex.world> domain names as part of a phishing scheme to obtain users’ personal IDs and passwords. See Compl. Exs. F.1(b) and F.5(b). Respondent also uses the <bittrexcenter.club> and <bittrex.ltd> domain names to direct traffic to websites that advertise competing goods and services. See Compl. Exs. F.3 and F.4. Likewise, Respondent uses the <bittrexservices.info>, <bittrexsolutions.info>, and <bittrexcenter.club> domain names to direct Internet traffic to websites that purport to be affiliated with or sponsored by Complainant, when they are not, presumably for financial gain. See Compl Exs. F.2, F.6 and F.7. Further, Respondent had actual knowledge of Complainant’s rights in the BITTREX mark prior to registering and subsequently using the domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Preliminary Issue: Multiple Respondents
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
Complainant contends that the <bittrex.ltd> domain name (registered under the name Kenneth Dachi) resolved to the same content as <bittrexcenter.club> (registered under the name KireevSergey Valerievich). Compare Compl. Ex. F.3 with Compl. Ex. F.4.
Complainant additionally claims the <bittrex.world> domain name (purportedly registered by Kenneth Dachi) was registered on the same date as the <bittrex.ltd> domain name, and on August 21, 2017, hosted the same content as was hosted on the <bittrexservices.info> domain name (registered under the name WhoisProtectService.net). See Compl. Exs. F.5(b) and F.6. The <bittrex.world> domain name was later redirected to a copycat page of Complainant’s legitimate website, which was associated with a phishing scheme identical to that at the <bittrexcenter.club> domain name (registered under the name KireevSergey Valerievich). See Compl. Exs. F.5(b) and F.1(b).
Complainant further argues that the <bittrexservices.info> domain name (registered under the name WhoisProtectService.net) on October 10, 2017 hosted the same content hosted on the website resolving from <bittrex.world> before that second domain name was changed to resolve to a phishing website. See Compl. Exs. F.5(a) and F.6.
Finally Complainant argues that the <bittrexsolutions.info> domain name was created on the same date and through the same registrar as the <bittrexservices.info> domain name.
The Panel finds that the domain names are commonly owned or controlled by a single Respondent who is using multiple aliases, that the domain names at issue are registered by the same domain name holder within the meaning of Paragraph 3(c) of the Rules and that the Complaint may therefore go forward on that basis.
1. Complainant is a United States company which uses the BITTREX mark to operate one of the leading cryptocurrency exchanges in the world.
2. Complainant has established its trademark rights to the BITTREX mark by virtue of its registration with the United Kingdom Intellectual Property Office (“UKIPO”) (e.g., No. UK00003231077, registered Jun. 10, 2017).
3. Respondent registered the disputed domain names on the following dates:
<bittrex.club> August 5, 2017
<bittrexcenter.club> August 19, 2017
<bittrexworld.club> August 19, 2017
<bittrex.ltd> August 5, 2017
<bittrex.world> August, 5, 2017
<bittrexservices.info> August 19, 2017
<bittrexsolutions.info> August 19, 2017
4. The <bittrex.club> and <bittrex.world> domain names are used as part of a fraudulent phishing scheme to obtain customers’ UserIDs and passwords. The <bittrexcenter.club> and <bittrex.ltd> domain names direct users to websites that are advertising competing goods and services and the <bittrexservices.info>, <bittrexsolutions.info>, and <bittrexworld.club> domain names direct users to a website that purports to be affiliated or sponsored by Complainant See Compl. Exs. F.6, F.7, F.2.
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.”).
The first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant submits that it has rights in the BITTREX mark due to registrations with the UKIPO and EUIPO and an application with the USPTO. Generally, applications to a government trademark office does not confer rights in a mark but trademark registrations are sufficient. See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA 1625332 (Forum July 17, 2015) (finding, “Registration of a mark with a governmental authority (or, in this case, multiple governmental authorities) is sufficient to establish rights in the mark for purposes of Policy ¶4(a)(i)”); see also Jireh Industries Ltd. v. DVLPMNT MARKETING, INC. / Domain Administrator, FA 1719671 (Forum Apr. 14, 2017) (“Pending trademark applications do not confer rights under Policy ¶ 4(a)(i).”). Here, Complainant has provided this Panel with copies of its UKIPO and EUIPO registrations for the BITTREX mark and its USPTO application (e.g., UKIPO—Reg. No. UK00003231077, registered Jun. 10, 2017). See Compl. Ex. E.1; see also Ex. D. The Panel notes that Respondent’s UKIPO registration predates the registration dates for the disputed domain names, but the EUIPO registration date does not. Therefore, the Panel finds that complainant has shown rights in the BITTREX mark per Policy ¶ 4(a)(i).
The next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s BITTREX mark. Complainant contends the Respondent’s <bittrex.club>, <bittrexcenter.club>, <bittrexworld.club>, <bittrex.ltd>, <bittrex.world>, <bittrexservices.info>, and <bittrexsolutions.info> domain names are confusingly similar to Complainant’s BITTREX mark as the names each contain the BITTEX mark in their entirety while adding generic terms and/or gTLDs. Generally, the addition of generic terms and gTLDs to a trademark is an insufficient change to distinguish a domain name from a trademark in a Policy ¶ 4(a)(i) analysis. 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.). In this case, Respondent added one of the gTLDs “.club,” “.ltd,” “.world,” or “.info” to the BITTREX mark in order to create domain names. Further, the <bittrexcenter.club>, <bittrexworld.club>, <bittrexservices.info>, and <bittrexsolutions.info> domain names each contain an added generic or descriptive term, adding one of the terms “center,” “world,” “services,” or “solutions” to the mark and gTLD. Therefore the Panel finds that Respondent’s disputed domain names are confusingly similar to Complainant’s BITTREX mark per Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a)Respondent has chosen to take Complainant’s BITTREX mark and has used it in its entirety in the domain names, adding only generic words in some cases and various gTLDs;
(b) Respondent registered the disputed domain names on the following dates:
<bittrex.club> August 5, 2017
<bittrexcenter.club> August 19, 2017
<bittrexworld.club> August 19, 2017
<bittrex.ltd> August 5, 2017
<bittrex.world> August, 5, 2017
<bittrexservices.info> August 19, 2017
<bittrexsolutions.info> August 19, 2017;
(c) The <bittrex.club> and <bittrex.world> domain names are used as part of a fraudulent phishing scheme to obtain customers’ UserIDs and passwords. The <bittrexcenter.club> and <bittrex.ltd> domain names direct users to websites that are advertising competing goods and services and the <bittrexservices.info>, <bittrexsolutions.info>, and <bittrexworld.club> domain names direct users to a website that purports to be affiliated or sponsored by Complainant;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e)Complainant submits that Respondent has no rights or legitimate interests in the <bittrex.club>, <bittrexcenter.club>, <bittrexworld.club>, <bittrex.ltd>, <bittrex.world>, <bittrexservices.info>, and <bittrexsolutions.info> domain names, as Respondent is not commonly known by any of the disputed domain names, nor has Complainant authorized Respondent to use the BITTREX mark in any way. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). The WHOIS information of record identifies Respondent as “KireevSergey Valerievich / Kireev,” “Kenneth Dachi,” or WhoisProtectService.net / PROTECTSERVICE, LTD.” Additionally, lack of evidence in the record to indicate that the respondent has been authorized to register a domain name using a complainant’s mark supports a finding that Respondent does not have rights or legitimate interests in said 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 Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by any of the disputed domain names;
(f) Complainant contends Respondent has no rights or legitimate interests in the <bittrex.club> or <bittrex.world> domain names because it is using the names to pass itself off as Complainant in furtherance of a phishing scheme. Use of a domain name to pass off as a complainant for the purposes of fraudulently obtaining Internet users’ information can be considered phishing, and is not demonstrative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See 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.”). Complainant claims the two domain names resolve to a website which mirrors Complainant’s legitimate website in order to obtain customer “UserIDs” and passwords. See Compl. Exs. F.1 (b) and F.5 (b). The Panel therefore finds Respondent lacks rights and legitimate interests in the <bittrex.club> and <bittrex.world> domain names per Policy ¶¶ 4(c)(i) and (iii);
(g)Complainant also submits Respondent lacks rights and legitimate interests in the <bittrexcenter.club> and <bittrex.ltd> domain names because it is using the names to redirect to websites which advertise goods and services which compete with Complainant’s business. Use of a domain name to redirect to competing websites is not a use demonstrative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Glaxo Group Ltd. v. WWW Zban, FA 203164 (Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting Internet users to a competing commercial site). Complainant submits the two domain names redirect to the website for the company TenX, which offers blockchain and cryptocurrency services that compete with Complainant’s business. See Compl. Ex. F.3 and F.4. The panel therefore determines Respondent does not have rights or legitimate interests in the <bittrexcenter.club> and <bittrex.ltd> domain names;
(h)Complainant submits Respondent’s use of the <bittrexworld.club>, <bittrexservices.info>, and <bittrexsolutions.info> domain names to direct Internet traffic to websites which appear to be affiliated with Complainant but are not is evidence Respondent lacks rights and legitimate interests in the domain names. Use of a domain name to direct Internet users to a website of respondent’s for respondent’s gain is not a use demonstrative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug.21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Summit Group, LLC v. LSO, Ltd., FA 758981 (Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either 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)). Complainant contends that each of the three domain names resolves to a website which displays articles which appear to be issued by or affiliated with Complainant. See Compl. Ex. F.6, F.7, and F.2. The Panel finds that this behavior indicates Respondent does not have rights or legitimate interests in the <bittrexworld.club>, <bittrexservices.info>, or <bittrexsolutions.info> domain names per Policy ¶¶ 4(c)(i) or (iii).
All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain names.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain names were registered in bad faith and have been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain names were registered and used in bad faith. That is so for the following reasons.
First, Complainant contends Respondent has registered and used the <bittrex.club> and <bittrex.world> domain names in bad faith by impersonating Complainant in furtherance of a phishing scheme. Use of a domain name to pass off as a complainant and phish for users’ information can be evidence of bad faith per Policy ¶¶ 4(b)(iii) and (iv). See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that the respondent’s registration and use of the disputed domain name, which displayed a website virtually identical to the complainant’s website, constituted bad faith pursuant to Policy ¶ 4(b)(iii)); see also 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). The Panel recalls Complainant’s contention that the two domain names resolve to websites which mirror Complainant’s legitimate site in an attempt to gain users’ login information. See Compl. Exs. F.1 (b) and F.5 (b). The Panel therefore determines Respondent registered and used the <bittrex.club> and <bittrex.world> domain names in bad faith per Policy ¶¶ 4(b)(iii) and (iv).
Secondly, Complainant submits Respondent has registered and used the <bittrexcenter.club> and <bittrex.ltd> domain names in bad faith by using them to redirect to a competitor’s website. Such use of a domain name can demonstrate Policy ¶¶ 4(b)(iii) and (iv) bad faith. See Disney Enters., Inc. v. Noel, FA 198805 (Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”). The Panel recalls that Complainant submitted the at-issue domain names resolve to the website of TenX, a competitor of Complainant. See Compl. Ex. F.3 and F.4. The Panel therefore determines that Respondent has registered and used the two domain names in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).
Thirdly, Complainant submits that Respondent’s use of the <bittrexworld.club>, <bittrexservices.info>, and <bittrexsolutions.info> domain names to direct Internet traffic to websites which appear to be affiliated with Complainant but are not is a bad faith use. Use of a domain name to create confusion as to source sponsorship, affiliation, or endorsement of a domain name can be evidence of bad faith per Policy ¶ 4(b)(iv). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because [r]espondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”). The Panel recalls Complainant’s contention that the domain names at issue resolve to websites containing information purporting to be from Complainant. See Compl. Ex. F.6, F.7, and F.2. The Panel determines Respondent has registered and used the three domain names in bad faith per Policy ¶¶ 4(b)(iv).
Fourthly, Complainant argues Respondent registered the domain names with actual knowledge of Complainant and its rights in the BITTREX mark. The Panel here finds that any arguments of bad faith based on constructive notice are irrelevant, however, because UDRP decisions have generally declined to find bad faith as a result of constructive knowledge. See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."). The Panel agrees with Complainant, however, that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain names and finds that actual knowledge is adequate evidence of bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). Complainant further submits that Respondent’s use of the domain names indicates it had actual knowledge of Complainant’s rights. The Panel agrees and finds Respondent had actual knowledge of Complainant’s rights in the mark and thus registered the domain names in bad faith.
Finally, in addition and having regard to the totality of the evidence, the Panel finds that, in view of Respondent’s registration of the disputed domain names using the BITTREX mark and in view of the conduct that Respondent engaged in when using them, Respondent registered and used the disputed domain names in bad faith within the generally accepted meaning of that expression.
Complainant has thus made out the third of the three elements that it must establish.
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.club>, <bittrexcenter.club>, <bittrexworld.club>, <bittrex.ltd>, <bittrex.world>, <bittrexservices.info>, and <bittrexsolutions.info> domain names be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Panelist
Dated: December 23, 2017
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