Bittrex, Inc. v. EVgenii Krivorot
Claim Number: FA1711001759138
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is EVgenii Krivorot (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bittrexi.pw>, registered with Registrar of Domain Names REG.RU LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her 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 November 17, 2017; the Forum received payment on November 17, 2017.
On November 21, 2017, Registrar of Domain Names REG.RU LLC confirmed by e-mail to the Forum that the <bittrexi.pw> domain name is registered with Registrar of Domain Names REG.RU LLC and that Respondent is the current registrant of the name. Registrar of Domain Names REG.RU LLC has verified that Respondent is bound by the Registrar of Domain Names REG.RU 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 November 28, 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@bittrexi.pw. Also on November 28, 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 19, 2017, 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 states that it operates a global cryptocurrency exchange. Today, Complainant’s cryptocurrency exchange is the third largest cryptocurrency exchange in the world, as measured by assets traded. Complainant’s cryptocurrency exchange has more than 1,400,000 users based in 60 countries throughout the world. In addition, 200 digital tokens are currently being traded on Bittrex, amounting to a trading volume of 500,000,000 US dollars. Complainant uses the BITTREX mark in conjunction with its business. Complainant registered the BITTREX mark in the United Kingdom on May 15, 2017. Complainant also registered the BITTREX mark with the European Union Intellectual Property Office on October 13, 2017. Complainant applied to register the BITTREX mark in the United States, with filing date February 13, 2017.
Complainant alleges that the disputed domain name is confusingly similar to its BITTREX mark because it incorporates the mark in its entirety, adding the extra letter “i” and the “.pw” country code top level domain (“ccTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name. Complainant has not authorized or licensed Respondent to use the BITTREX mark in any regard, nor is Respondent affiliated with Complainant. Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. The disputed domain name resolves to a website that is identical to Complainant’s website and phishes for users’ personal and financial information. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. The disputed domain name attracts internet users to Respondent’s website, by passing itself off as Complainant. Respondent’s website contains a log-in prompt to phish for users’ personal and financial information. Respondent registered the disputed domain name with actual knowledge of Complainant and its rights to the BITTREX mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns rights in the mark BITTREX dating back to at least May 15, 2017.
The disputed domain name was registered on October 30, 2017.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolves to a website that is identical to Complainant’s website, contains Complainant’s mark, and phishes for users’ personal and financial information. Respondent had actual knowledge of Complainant’s mark.
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.”).
Preliminary Issue: Language of Proceeding
Prior to discussing the three elements of the Policy, the Panel must decide on the language of the proceedings. The Registration Agreement is written in Russian thereby making the language of the proceedings Russian.
Pursuant to UDRP Rule 11(a), the Panel has the authority determine a different language for the proceedings, having regard to the circumstances of the case. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Pursuant to Rule 10(b), Respondent must be given a fair opportunity to present its case. Pursuant to Rule 10(c), the Panel may weigh the relative time and expense in enforcing the Russian language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant showing that Respondent is conversant and proficient in the English language: the web site at the disputed domain name is in English. After considering the circumstance of the present case, the Panel determines that fairness and justice to both parties, and due expedition, are best satisfied by conducting the remainder of the proceedings in English. See H-D U.S.A., LLC v. Yoshihiro Nakazawa, FA 1736477 (Forum July 21, 2017); see also UBS AG v. ratzel laura, FA 1735687 (Forum July 14, 2017).
The disputed domain name is confusingly similar to Complainant’s BITTREX mark because it incorporates the mark in its entirety, adding the extra letter “i” and the “.pw” ccTLD. The addition of single letter to a fully incorporated mark does not distinguish the disputed domain name from the original mark. See Google, Inc. v. DktBot.org, FA 286993 (Forum Aug. 4, 2004) (“The mere addition of a single letter to the complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i).”); see also Crocs, Inc. v. [Registrant], FA 1043196 (Forum Sept. 2, 2007) (determining that “the addition of a ccTLD is irrelevant to the Policy ¶ 4(a)(i) analysis, as a top-level domain is required of all domain names”). As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s BITTREX mark in the sense of the Policy.
Complainant has not authorized or licensed Respondent to use the BITTREX mark in any regard, nor is Respondent affiliated with Complainant. Respondent 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 a disputed domain name. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). WHOIS information associated with this case identifies Respondent as “EVgenii Krivorot”. This is sufficient to find that Respondent is not commonly known by the disputed domain name. See Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Forum Nov. 17, 2003) (Therefore, “[g]iven the WHOIS contact information for the disputed domain [name],” the Panel may “infer that Respondent . . . is not commonly known by the [disputed domain name] in any derivation.”). Consequently, the Panel finds that Respondent is not commonly known by the disputed domain name.
Further, Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. The disputed domain name resolves to a website that is identical to Complainant’s website and phishes for users’ personal and financial information. This is not a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the disputed domain name. 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.”). Thus, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name pursuant to Policy ¶¶ 4(c)(i) and (iii).
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 disputed domain name attracts internet users to Respondent’s website for commercial gain by passing itself off as Complainant. Moreover, the resolving website contains a log-in prompt to phish for users’ personal and financial information. Attracting internet users with a website that is identical to the complainant’s in furtherance of a phishing scheme evinces bad faith registration and use. See Wells Fargo & Co. v. Mihael, FA 605221 (Forum Jan. 16, 2006) (“[S]oon after the disputed domain name was registered, Respondent arranged for it to resolve to a web site closely resembling a legitimate site of [c]omplainant, called a ‘doppelganger’ page, the purpose of which is to deceive Complainant’s customers into providing to Respondent their login identification, social security numbers, and/or account information and Personal Identification Numbers . . . . The Panel finds that Respondent’s behavior . . . constitutes bad faith registration and use of the subject domain name pursuant to Policy ¶ 4(a)(iii).”). Thus the Panel finds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Further, Respondent had actual knowledge of Complainant’s mark and this can be grounds for finding bad faith registration and use. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“[A]lthough the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith,” panels have found “actual knowledge through the name used for the domain and the use made of it.”); see also Deep Foods, Inc. v. Jamruke, LLC, FA 648190 (Forum Apr. 10, 2006). Respondents’ use of the BITTREX mark on its fraudulent website shows that Respondents had actual knowledge of Complainant’s rights in the BITTREX mark prior to registering the disputed domain name and, in turn, is evidence of bad faith. See 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); see also Brownell Travel, Inc. v. Troy Haas, FA 1589137 (Forum Dec. 20, 2014). Thus the Panel finds bad faith on these grounds also.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bittrexi.pw> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: December 19, 2017
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