Bittrex, Inc. v. Maikel Van Baarn
Claim Number: FA1806001794732
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is Maikel Van Baarn (“Respondent”), Netherlands.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <bittrexsupport.org> and <bittrexapp.org>, (the “Domain Names”) registered with NameCheap, Inc.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 29, 2018; the Forum received payment on June 29, 2018.
On July 2, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <bittrexsupport.org> and <bittrexapp.org> domain names are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. 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 July 6, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 26, 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@bittrexsupport.org, postmaster@bittrexapp.org. Also on July 6, 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 30, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant’s contentions can be summarised as follows:
Complainant is the owner of the trade mark BITTREX, registered inter alia in the USA with first use recorded as 2014.
The Domain Names registered in 2018 are confusingly similar to Complainant’s BITTREX mark, wholly incorporating it and adding only the generic terms ‘support’ or ‘app’ and the gTLD .org neither of which distinguish the Domain Names from Complainant’s mark.
Respondent is not commonly known by the BITTREX mark and has no permission from Complainant to use Complainant’s mark. The Domain Names have been used either to point to Complainant’s web site (<bittrexsupport.org>) or to point to an inactive site (<bittrexapp.org>), and may be used to deliver malware and for a suspected phishing scam. These uses cannot be a bona fide offering of goods and services or a non commercial legitimate fair use. Respondent has no rights or legitimate interests in the Domain Names. These uses are bad faith registration and use and deprive Complainant of control of domain names containing its mark. The fact that <bittrexsupport.org> has been pointed to Complainant’s site shows that Respondent is aware of Complainant and its business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is the owner of the trade mark BITTREX, registered inter alia in the USA for financial services with first use recorded as 2014.
The <bittrexsupport.org> domain name has been used to point to Complainant’s web site. The <bittrexapp.org> domain name has not been attached to an active web site and attracts malware warnings if used.
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.”).
Identical and/or Confusingly Similar
The Domain Names in this Complaint combine Complainant’s BITTREX mark (registered in the USA for financial services with first use recorded as 2014) the generic terms ‘support’ or ‘app’ and the gTLD .org.
The addition of the generic word ‘support’ or ‘app’ do not serve to distinguish the Domain Names from Complainant’s BITTREX mark. See Abbott Laboratories v Miles White, FA 1646590 (Forum Dec. 10, 2015) (holding that the addition of generic terms do not adequately distinguish a disputed domain name from complainant’s mark under Policy ¶ 4(a)(i)).
The gTLD .org does not serve to distinguish the Domain Names from the BITTREX mark, which is the distinctive component of the Domain Names. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the <redhat.org> domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel finds that the Domain Names are confusingly similar to a mark in which Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
Complainant has not authorised the use of its mark. Respondent has not answered this Complaint and there is no evidence or reason to suggest Respondent is, in fact, commonly known by the Domain Names.
The <bittrexsupport.org> domain name has been pointed to Complainant’s website without Complainant’s authorisation which is not bona fide use or legitimate non commercial fair use. See Bank of America Corporation v Show Girls, FA 1804001783413 (Forum May 30, 2018).
There has been no proven use of the <bittrexapp.org> domain name. See Hewlett-Packard Co. v Shemesh, FA 434145 (Forum Apr. 20, 2005) (where the panel found inactive use is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i)).
As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Names and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Respondent has not answered this Complaint or explained why it should be allowed to register a domain name containing Complainant’s mark. The use of <bittrexsupport.org> to point to Complainant’s own web site shows Respondent was aware of Complainant and its business at the time of registration of that domain name. BITTREX is distinctive and not a descriptive term.
The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from or exploit the trade mark of another. Passive holding of a domain name containing a mark with a reputation can be bad faith registration and use. See Telstra Corporation Limited v Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000). Further, pointing a domain name containing Complainant’s trade mark to Complainant’s own web site is also bad faith registration and use. See McKinsey Holdings Inc. v Mgr. Jakob Bystron, FA 1330650 (Forum July 23, 2010)
As such, the Panel holds that Complainant has made out its case that the Domain Names were registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(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 <bittrexsupport.org> and <bittrexapp.org> domain names be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: August 1, 2018
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