Bittrex, Inc. v. Lauren Sullivan
Claim Number: FA1805001786850
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is Lauren Sullivan (“Respondent”), Ireland.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bi-ttrex.com>, registered with NameCheap, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 15, 2018; the Forum received payment on May 15, 2018.
On May 16, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <bi-ttrex.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 May 17, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 6, 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@bi-ttrex.com. Also on May 17, 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 June 8, 2018, 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 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 based upon its registration of the mark in the United States on January 16, 2018.
Complaint alleges that the disputed domain name is confusingly similar to Complainant’s BITTREX mark because it incorporates the BITTREX mark in its entirety and only adds a hyphen and the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not authorized to use Complainant’s BITTREX mark and is not commonly known by the disputed domain name. Additionally, Respondent has failed to use the domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, Respondent uses the domain name to pass off as Complainant in furtherance of Respondent’s phishing scheme. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent has registered and is using the disputed domain name in bad faith. Respondent uses the disputed domain name to impersonate Complainant in order to phish for customers’ credentials. Respondent’s use of the BITTREX mark indicates that it had actual knowledge of Complainant’s rights in the mark prior to registering the disputed domain name. 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 January 16, 2018.
The disputed domain name was registered on April 30, 2018.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name is used to pass off as Complainant in order to phish for users’ 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.”).
The disputed domain name is confusingly similar to Complainant’s BITTREX mark because it incorporates the BITTREX mark in its entirety and is only differentiated by a hyphen and the gTLD. Addition of a hyphen and the gTLD are not sufficient to distinguish a disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i). See Health Devices Corp. v. Aspen S T C, FA 158254 (Forum July 1, 2003) (“[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶ 4(a)(i).”); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). Consequently, the Panel finds that the disputed domain name is confusingly similar to Complainant’s BITTREX mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use its BITTREX mark in any way. Respondent is not commonly known by the disputed domain name: absent a response, WHOIS information may be used to find that a Respondent is not commonly known by the 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)). Here, the WHOIS information lists the registrant as “Lauren Sullivan.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under a Policy ¶ 4(c)(ii) analysis.
Further, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial fair use. Instead, Respondent attempts to pass off as Complainant in furtherance of a phishing scheme. Specifically, Respondent is using the disputed domain name to create the false impression that users are at Complainant’s BITTREX website in order to steal Complainant’s customer’s login credentials. Use of a domain name to pass off as a complainant in furtherance of phishing is not a bona fide offering of goods and services or for a legitimate noncommercial fair use under to Policy ¶¶ 4(c)(i) and (iii). 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 failed to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) and (iii). And the Panel finds that Respondent has no rights or legitimate interests in the dispute domain name.
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 the disputed domain name to pass off as Complainant to operate a phishing scam. Use of a domain name in connection with a phishing scam intentionally to create a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of a Complainant may constitute bad faith under Policy ¶ 4(a)(iii). See Wells Fargo & Co. v. Mihael, FA 605221 (Forum Jan. 16, 2006) (“Complainant asserts,…that soon after the disputed domain name was registered, Respondent arranged for it to resolve to a web site closely resembling a legitimate site of Complainant, called a ‘doppelganger’ (for double or duplicate) 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, as alleged, constitutes bad faith registration and use of the subject domain name pursuant to Policy ¶ 4(a)(iii).”). Therefore, the Panel finds that Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii).
Further, Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name: the resolving website is nearly identical to Complainant’s website, and it prominently displays Complainant’s mark, logos and look and feel in an attempt to pass off as Complainant. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”). Consequently, the Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and this constitutes bad faith under 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 <bi-ttrex.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 8, 2018
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page