iFinex Inc. v. viktoria belinskaia / private person
Claim Number: FA1808001800444
Complainant is iFinex Inc. (“Complainant”), represented by Julianne A. Henley of Miller Nash Graham & Dunn LLP, Washington, USA. Respondent is viktoria belinskaia / private person (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bitfanex.com>, registered with Registrar of Domain Names REG.RU 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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 7, 2018; the Forum received payment on August 7, 2018.
On August 9, 2018, Registrar of Domain Names REG.RU LLC confirmed by e-mail to the Forum that the <bitfanex.com> domain name is registered with Registrar of Domain Names REG.RU LLC and that Respondent is the current registrant of the name. Registrar of Domain Names REG.RU LLC has verified that Respondent is bound by the Registrar of Domain Names REG.RU 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 August 17, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 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@bitfanex.com. Also on August 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 September 10, 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, iFinex Inc., is involved in providing financial services including the world’s largest cryptocurrency trading platform. Complainant has rights in the BITFINEX mark based upon its registrations with multiple agencies. Respondent’s <bitfanex.com> is confusingly similar to Complainant’s mark as Respondent incorporates the entire BITFINEX mark, merely replacing the second letter “i” in the mark with an “a”.
Respondent does not have rights or legitimate interests in the <bitfanex.com> domain name. Respondent is not licensed or authorized to use Complainant’s BITFINEX mark and is not commonly known by the disputed domain name. Additionally, Respondent is not using the <bitfanex.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 mimic Complainant in furtherance of a fraudulent phishing scheme.
Respondent registered and is using the disputed domain name in bad faith. Respondent attempts to disrupt Complainant’s business by mimicking Complainant as part of a phishing scheme for Respondent’s own commercial gain. Moreover, Respondent uses a privacy service to conceal its identity. Finally, Respondent had knowledge of the BITFINEX mark when it registered and subsequently used the <bitfanex.com> domain name.
B. Respondent
Respondent did not submit a Response. The Panel notes that Respondent registered the <bitfanex.com> domain name on September 19, 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.”).
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
The Panel notes that the Registration Agreement is written in Russian, thereby making the language of the proceedings in Russian. Complainant has alleged that because Respondent is conversant and proficient in English, the proceeding should be conducted in English. The Panel has the discretion under UDRP Rule 11(a) it has the discretion to determine the appropriate language of the proceedings taking into consideration the particular circumstances of the administrative proceeding. See, e.g., FilmNet Inc. v Onetz, FA 96196 (Forum Feb. 12, 2001) (finding it appropriate to conduct the proceeding in English under Rule 11, despite Korean being designated as the required language in the registration agreement because the respondent submitted a response in English after receiving the complaint in Korean and English). Complainant contends that Respondent is conversant in English based upon the fact that the language placed on the resolving website for <bitfanex.com> is exclusively English and targets English-speaking users. Further, the privacy service used by Respondent provided contact information in English and the actual Respondent information provided by Respondent to the Registrar also appears to be in English.
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likelihood that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
Complainant claims rights in the BITFINEX mark based upon registrations with multiple agencies, including with the Hong Kong Trade Mark Registry (e.g., Reg. No. 304,279,690, registered Sept. 20, 2017, priority filing date May 19, 2017). Registration of a mark with various trademark authorities can be evidence of rights in the mark. See Alibaba Group Holding Limited v. YINGFENG WANG, FA 1568531 (Forum Aug. 21, 2014) (“Complainant has rights in the ALIBABA mark under the Policy through registration with trademark authorities in numerous countries around the world.”). The Panel notes that Complainant provides copies of its trademark registrations for the BITFINEX marks and a table of these registrations. Based on a review of these registrations, the Panel finds that Complainant has rights in the BITFINEX mark per Policy ¶ 4(a)(i).
Next, Complainant asserts that the <bitfanex.com> domain name is confusingly similar to the BITFINEX mark as it contains the mark in its entirety, merely replacing the second letter “i” for the letter “a. Misspelling of a complainant’s mark does not mitigate any confusing similarity between the mark and disputed domain name under Policy ¶ 4(a)(i). See Am. Online, Inc. v. David, FA 104980 (Forum Apr. 10, 2002) (“The misspelling of a famous mark does not diminish the confusingly similar nature between the marks and the disputed domain names.) The Panel agrees with Complainant and finds that the <bitfanex.com> domain name does not contain a change that would sufficiently distinguish the domain name from the BITFINEX mark.
Complainant argues that Respondent has no rights or legitimate interests in <bitfanex.com> as Respondent is not authorized to use Complainant’s BITFINEX mark and is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged, under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1574905 (Forum Sep. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.); see also Kohler Co. v. Privacy Service, FA1621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). Additionally, lack of evidence in the record to indicate that the respondent has been authorized to register a domain name using a complainant’s mark supports a finding that respondent does not have rights or legitimate interests in the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1620789 (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). The Panel notes that a privacy service was used by Respondent, but was lifted due to the commencement of this proceeding. As a result, the Panel sees that the WHOIS information of record identifies registrant as “viktoria belinskaia / private person.” The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Moreover, Complainant argues that Respondent is not using the <bitfanex.com> domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent attempts to mimic Complainant as part of a fraudulent scheme. Use of a domain name to pass off as a complainant in order to conduct a fraudulent scheme is not indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See iFinex Inc. v. Yuri Hefetz / Genie-Solution, FA 1789385 (Forum July 9, 2018) (holding that the respondent’s mimicking the complainant’s website in order to cause existing or potential customers to falsely believe they are setting up a new account with the complainant is prima facie evidence of the respondent’s lack of rights and legitimate interests in the disputed domain name). Here, Complainant claims Respondent creates a copy-cat website using Complainant’s mark and logos to mimic Complainant designed to solicit information from Complainant’s customers under false pretenses. Complainant provides screenshots to further it’s assertion. Thus, the Panel agrees that Respondent’s use of the domain name indicates that it lacks rights and legitimate interests in the disputed domain name per Policy ¶¶ 4(c)(i) and (iii).
Complainant has therefore also satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent has registered and uses the <bitfanex.com> domain name in bad faith. Complainant alleges that Respondent attempts to disrupt Complainant’s business and commercially benefit from the disputed domain name. Specifically, Complainant argues that Respondent is attempting to impersonate Complainant in order to conduct a fraudulent scheme for commercial gain. Use of a domain name to impersonate a complainant in furtherance of a fraudulent scheme may constitute bad faith pursuant to Policy ¶¶ 4(b)(iii) and/or (iv). See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that the respondent’s registration and use of the disputed domain name, which displayed a website virtually identical to the complainant’s website, constituted bad faith pursuant to Policy ¶ 4(b)(iii)); see also 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.”). As previously mentioned, Complainant claims that Respondent uses a copy-cat website using Complainant’s mark and logos to mimic Complainant designed to solicit information from Complainant’s customers under false pretenses, and provides screenshot evidence of such claim. Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶¶ 4(b)(iii) and (iv).
Further, Complainant argues Respondent must have had knowledge of Complainant’s BITFINEX mark. Considering Respondent’s use of a nearly identical variant of Complainant’s BITFINEX mark, and Respondent’s mimicking of Complainant, the Panel infers that Respondent had actual knowledge of Complainant’s rights in the BITFINEX mark, which constitutes bad faith registration of the domain name.
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 <bitfanex.com> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: September 21, 2018
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