Bittrex, Inc. v. lori Engelhardt
Claim Number: FA1803001779919
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is lori Engelhardt (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <xn--bttrx-9za8334c.com>, registered with NameCheap, Inc..
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 30, 2018; the Forum received payment on March 30, 2018.
On April 2, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <xn--bttrx-9za8334c.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 23, 2018 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@xn--bttrx-9za8334c.com. Also on April 3, 2018, 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 27, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant, operating under the BITTREX mark, owns and manages one of the leading cryptocurrency exchanges in the world.
Complainant holds a registration for the BITTREX service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 5,380,786, registered January 16, 2018).
Respondent registered the <bịttrėx.com> domain name on January 30, 2018.
The domain name is confusingly similar to Complainant’s BITTREX mark.
Respondent has not been commonly known by the domain name.
Complainant has not licensed or otherwise permitted Respondent to use the BITTREX mark.
Respondent does not use the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Rather, Respondent uses the domain name in connection with a phishing scheme to pass itself off as Complainant in order to capture the personal information of Complainant’s online customers for its commercial gain.
Respondent has failed to make demonstrable preparations to use the domain name in connection with an active website.
Respondent has no rights to or legitimate interests in the domain name.
Respondent knew of Complainant’s rights in the BITTREX mark prior to its registration and use of the domain name.
Respondent registered and uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent 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:
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable allegations and inferences set out in the Complaint unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
Preliminary Issue: Internationalized Domain Name
The domain name here in dispute, <bịttrėx.com>, is an internationalized domain name (“IDN”) with the PUNYCODE translation of <xn--bttrx-9za8334c.com>. An IDN is a domain name containing non-traditional characters, such as letters with diacritics or other non-ASCII characters. In order to display characters or symbols in a domain name, the terms of the domain name are encoded into a scheme such as PUNYCODE. IDNs and their PUNYCODE translations are substantively equivalent. See Damien Persohn v. Lim, FA 874447 (Forum February 19, 2007) (finding an IDN, <têtu.com>, and its PUNYCODE translation, <xn--ttu-fma.com>, to be one and the same under the Policy). See also Württembergische Versicherung AG v. Emir Ulu, D2006-0278 (WIPO May 4, 2006) (finding the <xn--wrttembergische-versicherung-16c.com> domain name PUNYCODE translation equivalent to the <württembergische-versicherung.com> domain name, recognizing the translation of German letters such as “ä” or “ü” into codes such as <xn--[name]-16c> and similar). Further see Fujitsu Ltd. v. tete and Lianqiu Li, D2006-0885 (WIPO Oct0ber 12, 2006) (finding the domain name <xn--zqsv0e014e.com> to be an exact reproduction of a UDRP complainant’s Chinese trademark in a domain name).
Accordingly, the Panel concludes that the <bịttrėx.com> domain name is substantively identical to its PUNYCODE translation, <xn--bttrx-9za8334c.com>, for all purposes in this proceeding. For simplicity, we will refer to the domain name throughout only as <bịttrėx.com>.
Complainant has rights in the BITTREX mark sufficient for purpose of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the USPTO. See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum August 11, 2015):
There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) .... Due to Complainant’s … USPTO registration on the principal register …, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).
[T]he Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <bịttrėx.com> domain name is confusingly similar to Complainant’s BITTREX service mark. The domain name contains the mark in its entirety, with only the addition of diacritical marks to the “i” and “e,” plus the generic Top Level Domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See, for example, Microsoft Corp. v. Harrington, FA1305319 (Forum March 16, 2010) (finding <bıng.com> [xn--bng-jua.com] confusingly similar to the BING mark). See also Dell Inc. v. Protection of Private Person / Privacy Protection, FA 1681432 (Forum August 1, 2016):
A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs.
Under Policy 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the <bịttrėx.com> domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … 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, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c) (i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <bịttrėx.com> domain name, and that Complainant has not licensed or otherwise authorized Respondent to use the BITTREX mark. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “lori Engelhardt,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See, for example, Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by the <chevron-europe.com> domain name where the relevant WHOIS information identified its registrant only as “Fred Wallace.” See also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that a respondent was not commonly known by a disputed domain name where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name).
We next observe that Complainant asserts, without objection from Respondent, that Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use, in that Respondent employs the domain name to pass itself off as Complainant online as part of a “phishing” scheme aimed at obtaining personal information from unsuspecting Internet users and to profit from this use of the domain name. This use is neither a bona fide offering of goods or services by means of the domain name under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of it under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy. See Google Inc. v. Pritam Singh / Pandaje Technical Services Pvt Ltd., FA 1660771 (Forum March 17, 2016) (finding no rights to or legitimate interests in a challenged domain name accruing to a respondent under either Policy ¶¶ 4(c)(i) or (iii) where that respondent used a UDRP complainant’s mark in a domain name resolving to a website containing offers for technical support and password recovery services, while soliciting Internet users’ personal information).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent uses the <bịttrėx.com> domain name to pass itself off online in furtherance of a “phishing” scheme aimed at acquiring the personal information of unsuspecting Internet users and to profit from this fraudulent activity. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in registering and using the domain name. See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum December 27, 2017) (finding bad faith registration and use of a domain name under Policy ¶ 4(b)(iv) where “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.”).
We are also convinced by the evidence that Respondent knew of Complainant and its rights in the BITTREX mark when Respondent registered the <bịttrėx.com> domain name. This further demonstrates Respondent’s bad faith in registering that domain name. See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum August 16, 2007) (rejecting the respondent's contention that it did not register a disputed domain name in bad faith where a panel found that that respondent had knowledge of a UDRP complainant's rights in a mark when registering a disputed domain name). See also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum February 6, 2014):
The Panel … here finds actual knowledge through the name used for the domain and the use made of it.
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <xn--bttrx-9za8334c.com> domain name be TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: April 28, 2018
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