Ripple Labs Inc. v. Thomas Viva Vivas
Claim Number: FA1712001760987
Complainant is Ripple Labs Inc. (“Complainant”), represented by Rachel Jacques of Maschoff Brennan, Utah, USA. Respondent is Thomas Viva Vivas (“Respondent”), Norway.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wallet-ripple.com>, registered with Hosting Concepts B.V. d/b/a Openprovider.
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.
David A. Einhorn as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 1, 2017; the Forum received payment on December 1, 2017«DateHardCopy».
On December 8, 2017, Hosting Concepts B.V. d/b/a Openprovider confirmed by e-mail to the Forum that the <wallet-ripple.com> domain name is registered with Hosting Concepts B.V. d/b/a Openprovider and that Respondent is the current registrant of the name. Hosting Concepts B.V. d/b/a Openprovider has verified that Respondent is bound by the Hosting Concepts B.V. d/b/a Openprovider 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 December 8, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 28, 2017 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@wallet-ripple.com. Also on December 8, 2017, 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 January 2, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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, Ripple Labs Inc., uses its RIPPLE mark to promote its products and services in the electronic financial services market. Complainant established rights in the RIPPLE mark through registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,453,543, registered Dec. 24, 2013). Respondent’s <wallet-ripple.com> domain name is confusingly similar to Complainant’s mark because it merely adds the generic term “wallet” and the generic top-level domain (“gTLD”) “.com” to the fully incorporated mark.
Respondent does not have rights and legitimate interests in the <wallet-ripple.com> domain name. Complainant has not licensed or otherwise authorized Respondent to use its RIPPLE mark in any fashion. Respondent is not commonly known by the <wallet-ripple.com> domain name as the WHOIS information lists “Thomas Viva Vivas” as the registrant of the domain name. Further, Respondent is not using the <wallet-ripple.com> domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to divert Internet users to its website where Respondent attempts to pass itself off as Complainant by featuring Complainant’s RIPPLE mark and logos. Additionally, the <wallet-ripple.com> domain name’s resolving website purports to offer services that directly compete with Complainant’s services.
Respondent registered and is using the <wallet-ripple.com> domain name in bad faith. Respondent uses the domain name to divert Internet users searching for Complainant’s website to Respondent’s competing website and create a likelihood of confusion with Complainant’s mark for Respondent’s commercial gain by offering competing services and featuring Complainant’s RIPPLE mark and logo on its resolving website. Further, Respondent was certainly well-aware of Complainant as Respondent appropriates Complainant’s trademark, and because Respondent copies Complainant’s website on the resolving webpage.
B. Respondent
Respondent failed to submit a response in this proceeding.The Panel notes that Respondent registered the <wallet-ripple.com> domain name on November 9, 2017.
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 contends that it registered its RIPPLE mark with the USPTO (e.g., Reg. No. 4,453,543, registered Dec. 24, 2013). Registration of a mark with a trademark authority, such as the USPTO, confers rights in a mark for the purposes of Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). As such, the Panel concludes that Complainant established rights in the RIPPLE mark for the purposes of Policy ¶ 4(a)(i).
Next, Complainant argues that Respondent’s <wallet-ripple.com> domain name is confusingly similar to Complainant’s mark because it merely adds the generic term “wallet” and the gTLD “.com” to the fully incorporated mark. The Panel also notes that the domain name includes a hyphen separating the allegedly generic term and Complainant’s RIPPLE mark. The addition of a generic term, a hyphen and gTLD generally do not negate confusing similarity. See Eastman Chem. Co. v. Patel, FA 524752 (Forum Sept. 7, 2005) (“Therefore, the Panel concludes that the addition of a term descriptive of Complainant’s business, the addition of a hyphen, and the addition of the gTLD ‘.com’ are insufficient to distinguish Respondent’s domain name from Complainant’s mark.”). Therefore, the Panel holds that Respondent’s <wallet-ripple.com> domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant claims Respondent does not have rights and legitimate interests in the <wallet-ripple.com> domain name, as Complainant has not licensed or otherwise authorized Respondent to use its RIPPLE mark in any fashion. Absent contradicting evidence in the record that a respondent was authorized to use a complainant’s mark in a domain name or that a respondent is commonly known by the disputed domain name, the respondent is presumed to lack rights and legitimate interests in the domain name. See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name). Under Policy ¶ 4(c)(ii), WHOIS information can be used to support a finding that a respondent is not commonly known by a disputed domain name. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA 1613011(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)). The WHOIS information of record for the <wallet-ripple.com> domain name lists ““Thomas Viva Vivas” as the registrant of the domain name. Accordingly, the Panel holds that Respondent is not commonly known by the <wallet-ripple.com> domain name per Policy ¶ 4(c)(ii).
Further, Complainant argues that Respondent is not using the <wallet-ripple.com> domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Complainant claims that Respondent uses the domain name to divert Internet users to its website where Respondent attempts to pass itself off as Complainant by featuring Complainant’s RIPPLE mark and logos, and where it offers services that compete with Complainant’s electronic financial services business. A respondent’s use of a domain name to pass off as a complainant and offer competing services can evince a failure to make a bona fide offering of goods or services or a legitimate noncommercial or fair use. 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).”). Complainant claims, and respondent does not dispute, that screenshots of the <wallet-ripple.com> domain name’s resolving website indicate that the site features Complainant’s RIPPLE mark and RIPPLE design marks, information about Complainant’s RIPPLE business, and purports to offer a service affiliated with Complainant’s business called “Ripple Wallet.” As such, the Panel holds that Respondent uses the domain name to divert Internet users to its website where Respondent attempts to pass itself off as Complainant and offer competing services, thus failing to use the disputed domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
Thus, Complainant has also satisfied Policy ¶ 4(a)(ii).
Complainant claims that Respondent uses the domain name to divert Internet users searching for Complainant’s website to Respondent’s competing website, and to create a likelihood of confusion with Complainant’s mark for Respondent’s commercial gain by offering competing services and featuring Complainant’s RIPPLE mark and logo on its resolving website. Use of a domain name to create confusion as to the source, sponsorship, affiliation, or endorsement of competing content therein can evidence bad faith under Policy ¶ 4(b)(iv). See 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.”) Complainant provides evidence that screenshots of the <wallet-ripple.com> domain name indicate that the site features Complainant’s RIPPLE mark and logo and purports to offer competing services such as “Ripple Wallet.” Therefore, the Panel holds that Respondent uses the domain name to create confusion in users seeking Complainant and offer competing goods and services in bad faith pursuant to Policy ¶ 4(b)(iv).
Further, Complainant alleges that Respondent had full knowledge of Complainant’s rights to the RIPPLE mark. Prior knowledge of a complainant’s rights to a mark can evidence bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007). Complainant claims that Respondent clearly had knowledge of Complainant’s rights to the RIPPLE mark in light of Respondent’s appropriation of Complainant’s marks, and of Complainant’s website. The Panel infers that Respondent had knowledge of Complainant’s mark prior to registering the domain name at issue, which demonstrates bad faith under Policy ¶ 4(a)(iii).
Thus, Complainant has also satisfied 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 <wallet-ripple.com> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: January 16, 2018
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