Bittrex, Inc. v. Wuxi Yilian LLC
Claim Number: FA1711001760517
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is Wuxi Yilian LLC (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain names at issue are <lbittrex.com>, <ibittrex.com>, and <bilttrex.com>, registered with CNOBIN INFORMATION TECHNOLOGY LIMITED.
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 29, 2017; the Forum received payment on November 28, 2017.
On November 30, 2017, CNOBIN INFORMATION TECHNOLOGY LIMITED confirmed by e-mail to the Forum that the <lbittrex.com>, <ibittrex.com>, and <bilttrex.com> domain names are registered with CNOBIN INFORMATION TECHNOLOGY LIMITED and that Respondent is the current registrant of the names. CNOBIN INFORMATION TECHNOLOGY LIMITED has verified that Respondent is bound by the CNOBIN INFORMATION TECHNOLOGY LIMITED 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 December 1, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 21, 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@lbittrex.com, postmaster@ibittrex.com, postmaster@bilttrex.com. Also on December 1, 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 26, 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 <lbittrex.com>, <ibittrex.com>, and <bilttrex.com> domain names are confusingly similar to Complainant’s BITTREX mark as each domain name consists entirely of the mark and merely add either the letter “l” or “i” to the mark.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the domain names, nor has Complainant authorized or licensed Respondent to use the BITTREX mark in any manner. Respondent’s use of the domain names does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the <lbittrex.com> domain name to redirect users to Complainant’s own website in furtherance of a phishing scheme to obtain customer information. Further, Respondent uses the <ibittrex.com> domain name in connection with a phishing scam or an effort to install malware on the user’s computer. Finally, Respondent fails to actively use the <bilttrex.com> domain name, and previously appeared to use the domain name to phish for customer information by hosting an identical webpage to that of Complainant.
Further, says Complainant, Respondent registered and is using the disputed domain names in bad faith. Respondent has shown a pattern of bad faith registration, as it has been the respondent in multiple WIPO disputes that have resulted in the transfer of multiple infringing domain names. Further, Respondent registered and used the <lbittrex.com> domain name to direct Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant. Respondent uses, or has used, all of the domain names to pass off as Complainant in order to phish for users’ information. Further, Respondent’s use of the domain names, or prior use in the case of the <bilttrex.com> domain name, indicates Respondent had actual knowledge of Complainant’s rights in the mark at the time it registered and subsequently used the domain name.
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 names were registered in August and September 2017.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain names have been used to pass off as Complainant in order to phish for users’ information. Respondent has shown a pattern of bad faith registration. 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.”).
The disputed domain names <lbittrex.com>, <ibittrex.com>, and <bilttrex.com> are confusingly similar to Complainant’s mark as each domain name consists entirely of the mark and merely add either the letter “l” or “i” to the mark. Similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶4(a)(i). See OpenTable, Inc. v. Above.com Domain Privacy, FA 1626187 (Forum Aug. 10, 2015 (“Respondent’s <oipentable.com> domain name is confusingly similar to the OPENTABLE mark under Policy ¶ 4(a)(i) because the disputed domain merely adds the letter ‘i’ . . . ”). The Panel therefore finds that the disputed domain names are confusingly similar to the BITTREX mark under Policy ¶4(a)(i).
Respondent has never been legitimately affiliated with Complainant, and Complainant has not given Respondent permission to use its mark. Respondent is not commonly known by the disputed domain name: where a response is lacking, relevant information includes the WHOIS and any other assertions by a complainant regarding the nature of its relationship with a respondent. See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). The WHOIS identifies “Wuxi Yilian LLC / Wuxi Yilian LLC” as the registrant for all of the domain names. Accordingly, the Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).
Further, Respondent does not use any of the disputed domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use because Respondent attempts (or previously attempted) to pass off as Complainant to engage in a phishing scheme to obtain information from users. Passing off in furtherance of a phishing scheme can evince a failure to make a bona fide offering of goods or services or legitimate noncommercial or fair use. See Google Inc. v. Pritam Singh / Pandaje Technical Services Pvt Ltd., FA 1660771 (Forum March 17, 2016) (agreeing that respondent has not shown any bona fide offering of goods or services or any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii) as the respondent used the complainant’s mark and logo on a resolving website containing offers for technical support and password recovery services, and soliciting Internet users’ personal information). As such, the Panel finds that Respondent attempts/attempted to pass off as Complainant fraudulently to acquire personal information from unsuspecting users for the disputed domain names, thus failing to use them in connection with any bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
Further, Respondent, in addition to the phishing scheme analyzed in the previous paragraph, uses the <ibittrex.com> domain name to install malware onto the user’s computer. Installing malware can evince a failure to provide a bona fide offering of goods or services or legitimate noncommercial or fair use. See Google LLC v. Above.com Domain Privacy, FA1753950 (Forum Nov 14, 2017). Accordingly, the Panel may finds that the <ibittrex.com> domain name is associated with malware, failing to make a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).
The Panel finds that Respondent does not have rights or legitimate interests in the disputed domain names.
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 names.
Indeed, as already noted, Respondent uses (or used) the disputed domain names to pass off as Complainant to further a phishing scheme intended to defraud users. Phishing schemes can evince bad faith registration and use. See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”). As such, the Panel finds that Respondent registered and uses the disputed domain names in bad faith pursuant to Policy ¶ 4(a)(iii).
Also, Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant. Using a disputed domain name that trades upon the goodwill of a complainant for commercial gain can evince bad faith under Policy ¶ 4(b)(iv). See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”); see also 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).”). Accordingly, the Panel finds that Respondent attempts to commercially benefit off Complainant’s mark with the <lbittrex.com> domain name, and it finds bad faith under Policy ¶ 4(b)(iv).
Further, Respondent has a propensity for registering confusingly similar domain names with prior adverse WIPO decisions against it. A complainant may use prior adverse decisions against a respondent in the current proceeding to evince bad faith under Policy ¶ 4(b)(ii). See Greektown Casino, LLC v. Daniel Kirchhof c/o Unister GmbH, FA1308001513182 (Forum Sept. 17, 2013) (“The Panel finds that Respondent’s implication in a pattern of bad faith use and registration serves as evidence of Policy ¶ 4(b)(ii) bad faith use and registration in the instant proceeding as well.”). Accordingly, the Panel finds that Respondent registered the disputed domain name in bad faith based on Respondent’s prior history of registering confusingly similar domain names.
Finally, the record shows that Respondent had actual knowledge of Complainant’s BITTREX mark at the time it registered the disputed domain names. Actual knowledge of a complainant’s rights in a mark prior to registering an identical or confusingly similar domain name can evince 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). Consequently, the Panel finds bad faith registration under Policy ¶ 4(a)(iii) also on these grounds.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lbittrex.com>, <ibittrex.com>, and <bilttrex.com> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: December 27, 2017
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