Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund
Claim Number: FA1806001790949
Complainant is Ripple Labs Inc. (“Complainant”), represented by Rachel Jacques of Maschoff Brennan, Utah, USA. Respondent is Jessie McKoy / Ripple Reserve Fund (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <xrprf.com>, registered with GoDaddy.com, LLC.
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.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 11, 2018; the Forum received payment on June 11, 2018.
On June 12, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <xrprf.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 June 13, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 3, 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@xrprf.com. Also on June 13, 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 July 5, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. 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
i) Complainant, Ripple Labs Inc. (the successor of Opencoin, Inc.), is the owner of various registered trademarks for its RIPPLE brand, including the XRP mark which is used in connection with a digital asset used for demand payments. Complainant has rights in the XRP mark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,458,993, registered Dec. 31, 2013). See Compl. Annex B. Respondent’s <xrprf.com> domain name is confusingly similar to Complainant’s XRP mark as Respondent adds the non-distinctive letters “RF” and a “.com” generic top-level domain (“gTLD”) to Complainant’s fully incorporated mark.
ii) Respondent has no rights or legitimate interests in the <xrprf.com> domain name. Respondent is not authorized or licensed to use Complainant’s XRP mark and is not commonly known by the disputed domain name. Additionally, Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to promote and advertise its own purported services under the guise that it is Complainant or affiliated with Complainant.
iii) Respondent registered and is using the <xrprf.com> domain name in bad faith. Respondent attempts to attract, for commercial gain, users to the disputed domain name which advertises and sell competing services. Further, Respondent had actual knowledge of Complainant’s rights in the XRP mark prior to registering the disputed domain name.
B. Respondent
Respondent did not submit a response.
1. Respondent registered the disputed domain name on February 6, 2018.
2. Complainant has established its rights through the registrations for the XRP mark with the USPTO (e.g., Reg. No. 4,458,993, registered Dec. 31, 2013).
3. A screenshot of the disputed domain name’s resolving website appears to offer online, cryptocurrency services.
4. A screenshot of the disputed domain name’s resolving website features Complainant’s RIPPLE mark and various photographs related to Complainant’s business.
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.”).
Complainant claims to have rights in the XRP mark through its trademark registrations with the USPTO. Registering a mark with a governmental authority, such as the USPTO, is sufficient to demonstrate rights in a mark under Policy ¶ 4(a)(i). 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)”). Complainant provides a copy of its USPTO registration for the XRP mark (e.g., Reg. No. 4,458,993, registered Dec. 31, 2013). See Compl. Annex B. As a result, the Panel finds Complainant sufficiently establishes rights in the XRP mark per Policy ¶ 4(a)(i).
Next, Complainant contends Respondent’s <xrprf.com> domain name is confusingly similar to Complainant’s XRP mark as Respondent adds non-distinctive letters and a gTLD to the mark. Additions of letters and/or a gTLD does not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Twitch Interactive, Inc. v. Antonio Teggi, FA 1626528 (Forum Aug. 3, 2015) (finding the <twitcch.tv> domain name confusingly similar to the TWITCH TV trademark because the domain name consisted of a common misspelling of the mark by merely adding the letter “c”); see also F.R. Burger & Associates, Inc. v. shanshan lin, FA 1623319 (Forum July 9, 2015) (holding, “Respondent’s <frburger.com> domain name is identical to Complainant’s FRBURGER mark because it differs only by the domain name’s addition of the top-level domain name “.com.”). Complainant argues Respondent merely adds the non-distinctive letters “RF” and a “.com” gTLD to the XRP mark. Therefore, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant asserts Respondent has no rights or legitimate interests in the <xrprf.com> domain name. Specifically, Complainant argues Respondent is not authorized or licensed to use Complainant’s XRP mark and is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record). Further, where there is no evidence in the record to suggest a respondent was authorized to use a mark may indicate a lack of rights or legitimate interests in the disputed 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). Complainant provides a copy of the WHOIS information which identifies Respondent as “Jessie McKoy / Ripple Reserve Fund” and there is no other evidence to suggest Respondent was authorized to register a domain name with the mark. See Compl. Annex C. The Panel notes the WHOIS appears to be related to the RIPPLE mark, but Respondent did not provide affirmative evidence. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Additionally, Complainant claims Respondent fails to use the <xrprf.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Complainant argues Respondent uses the disputed domain name to promote and advertise its own services under the guise that it is Complainant or affiliated with Complainant. Use of a disputed domain name to pass off and/or offer competing goods or services is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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).”); see also Upwork Global Inc. v. Shoaib Malik, FA 1654759 (Forum Feb. 3, 2016) (finding that Complainant provides freelance talent services, and that Respondent competes with Complainant by promoting freelance talent services through the disputed domain’s resolving webpage, which is neither a bona fide offering of goods or services, nor is it a legitimate noncommercial or fair use). Complainant provides a screenshot of the disputed domain name’s resolving website which features Complainant’s RIPPLE mark and various photographs related to Complainant’s business. See Compl. Annex D. Thus, the Panel finds Respondent fails to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. 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 name.
Complainant alleges Respondent registered and uses the <xrprf.com> domain name in bad faith. Specifically, Complainant contends Respondent attempts to attract, for commercial gain, users to the disputed domain name where Respondent offers competing services. Use of a disputed domain name to attract, for commercial, Internet users in order to compete with a complainant may demonstrate bad faith under Policy ¶ 4(a)(iv). See Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA1409001579141 (Forum Oct. 15, 2014) (“Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant.”). Complainant provides a screenshot of the disputed domain name’s resolving website which appears to offer online, cryptocurrency services. See Compl. Annex D. Consequently, the Panel finds Respondent’s attempts to compete with Complainant is evidence of bad faith per Policy ¶ 4(a)(iv).
Further, Complainant argues Respondent was well-aware of Complainant and its XRP mark when it registered the <xrprf.com> domain name. The Panel is of the view that while constructive notice is insufficient for a finding of bad faith, actual knowledge may support a finding of bad faith under 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 Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it”). Complainant contends Respondent’s appropriation of Complainant’s trademark was a clear intent to trade upon Complainant’s reputation and goodwill in order to confuse Internet users. Therefore, the Panel finds Respondent did have actual knowledge of Complainant’s mark prior to registration and this constitutes bad faith per 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 <xrprf.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: July 9, 2018
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