Bittrex, Inc. v. CAROLINE DE FREITAS ARAUJO
Claim Number: FA1808001800806
Complainant is Bittrex, Inc. (“Complainant”), represented by Patchen M. Haggerty of Perkins Coie LLP, Washington, USA. Respondent is CAROLINE DE FREITAS ARAUJO (“Respondent”), Brazil.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bittrex-ixz.com>, registered with Tucows Domains 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 August 9, 2018; the Forum received payment on August 9, 2018.
On August 10, 2018, Tucows Domains Inc. confirmed by e-mail to the Forum that the <bittrex-ixz.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 August 13, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 4, 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@bittrex-ixz.com. Also on August 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 November 6, 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 operates 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.
Complainant alleges that the disputed domain name is confusingly similar to Complainant’s BITTREX mark, as the name is only differentiated from the mark by the addition of “-IXZ” and a generic top-level domain (“gTLD”); the term “IX” is commonly used for “Internet exchange”, which is related to Complainant’s business. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the BITTREX mark. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods and services or a legitimate noncommercial or fair use. Rather, Respondent is using the disputed domain name in an attempt to pass off as Complainant in furtherance of a phishing scheme. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. Respondent registered and uses the disputed domain in connection with a phishing scam to intentionally create a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of Complainant. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the BITTREX mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark BITTREX and uses it to market a cryptocurrency exchange. Complainant’s rights in its mark date back to January 16, 2018.
The disputed domain name was registered on June 25, 2018.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The resolving webpage mimics Complainant’s own logon webpage (including Complainant’s mark and logo) in furtherance of a phishing scheme.
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 the domain name wholly incorporates the mark and is only differentiated by the addition of a hyphen, the descriptive term “ix”, the random letter “z”, and the incorporation of the “.com” gTLD; Respondent’s use of “ix” is shorthand for “internet exchange,” which is the type of business that Complainant is involved in. The addition of a hyphen, a descriptive term, a random letter, and a gTLD is insufficient to distinguish a disputed domain name from a complainant’s mark. See Bittrex Inc. v. Neusa Ibrahim abdul Pereira sultan, FA 1807001796329 (Forum Aug. 7, 2018) (finding that “ix” is a generic term which may be taken as an abbreviation for “Internet Exchange,” a description of Bittrex. Inc.’s business); see also King Ranch IP, LLC v. E Miller, FA 1785596 (Forum June 6, 2018) (“Complainant’s trademark is used in-part with regard to barbecue related goods and services; the term “bbq” is thus suggestive of the KING RANCH trademark. Therefore, the Panel finds that the <kingranchbbq.com> domain name is confusingly similar to Complainant’s KING RANCH mark.”); see also TripAdvisor, LLC / Smarter Travel Media LLC / Jetsetter, Inc. v. RAKSHITA MERCANTILE PRIVATE LIMITED, FA 1623459 (Forum July 17, 2015) (“Adding a single letter is not enough to prevent a domain name from being confusingly similar to a mark.”); see also Emerson Electric Co. v. wang weifang zhenming / weifang zhenming xinxikeji co.,ltd., FA1711001756930 (Forum Dec. 7, 2017) (finding confusing similarity where the disputed domain name “contains Complainant’s entire mark and adds a hyphen, the term ‘ups,’ the letters ‘d’ and ‘y,’ along with the gTLD ‘.com.’”); see also AbbVie Inc. v. Season Advertising, S.L., FA1704001727071 (Forum Jun. 12, 2017) (finding confusing similarity where the disputed domain name <abbvie-hcv.com> incorporated complainant’s entire mark and appended “a hyphen, followed by two or three additional letters and the gTLD ‘.com’”). The Panel therefore finds that the <bittrex-ixz.com> domain name is confusingly similar to the BITTREX mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use the BITTREX mark in any way. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Here, the WHOIS information of record identifies Respondent as “Caroline De Freitas Araujo.” The Panel therefore finds, under Policy ¶ 4(c)(ii), that Respondent has not been commonly known by the disputed domain name.
Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, the domain name resolves to a webpage where Respondent is attempting to pass off as Complainant in furtherance of a phishing scheme. Specifically, Complainant provides screenshots of the resolving webpage showing a copy of Complainant’s own BITTREX logon page in an attempt to trick Internet users into divulging their usernames and passwords. Such use is not indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See 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.”). The Panel therefore finds that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) & (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed 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 name.
Indeed, as noted above, the resolving webpage mimics Complainant’s own logon webpage in furtherance of a phishing scheme. This is evidence of bad faith per Policy ¶¶ 4(a)(iii) & 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per 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.”); see also Capital One Fin. Corp. & Capital One Bank v. Howel, FA 289304 (Forum Aug. 11, 2004) (“The <capitalonebank.biz> domain name is confusingly similar to Complainant’s mark, it is being used to redirect Internet users to a website that imitates Complainant’s credit application website, and it is being used to fraudulently [sic] acquire personal information from Complainant’s clients. Respondent’s use of the domain name supports findings of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). The Panel therefore finds that Respondent registered and is using the disputed domain name in bad faith per Policy ¶¶ 4(a)(iii) & 4(b)(iv).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: Respondent used Complainant’s mark and logo on the resolving webpage. 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.”). 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 that this constitutes bad faith registration and use 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 <bittrex-ixz.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 6, 2018
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