The Complainant is Ripple Labs, Inc. of San Francisco, California, United States of America (“USA”), represented by Feldman Gale, P.A., USA.
The Respondent is Whoisguard Inc. of Panama / CCSAFDSAFDS CCD, Test Test, of Republic of Korea. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 31, 2015. On August 3, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 4, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on August 5, 2015, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on August 5, 2015.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceeding commenced on August 12, 2015. In accordance with the Rules, paragraph 5, the due date for Response was September 1, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 2, 2015.
The Center appointed James A. Barker as the sole panelist in this matter on September 11, 2015. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
The Complainant is a company organized under the laws of Delaware, USA, with a principal place of business in California, USA. The Complainant describes itself as a payment network that can be used to transfer any currency and its own digital currency. Although the Complaint provides limited additional details, it is apparent from the nature of the Complainant’s marks and other information in the Complaint, that the Complainant facilitates on-line trading via its website in various commodities.
The Complainant is the owner of a number of marks registered on the principal register of the United States Patent and Trademark Office (“USPTO”) that include the term RIPPLE. These include marks registered in international classes 9, 36 and 38, and marks registered in relation to on-line currency trading. The Complainant claims to have used some of its marks in commerce as early as July 1998. The earliest of the Complainant’s trademarks for RIPPLE were registered as early as December 2013. The Complainant also has a mark registered from May 2015 for RIPPLE TRADE, which was first filed in March 2014, and a mark for RIPPLE COMMUNICATIONS registered as early as August 2013. The Complainant has applied for a mark for RIPPLE LABS, filed in March 2015.
The Complainant owns and operates the domain name .
According to the WhoIs details, the disputed domain name was created on April 9, 2015. The contact details for the Respondent, confirmed by the Registrar, include apparently nonsensical details, including the name of the Respondent as “Test Test”, the organization name and address of “CCSAFDSAFDS CCD”. The country address for the Respondent was listed as the Republic of Korea.
The Complainant provides evidence of the website at the disputed domain name, which includes photographs of various (apparently random) architectural landmarks, with text almost entirely in Korean. The Complainant’s own website is presented with text in English, Korean and Japanese. The Complainant’s website includes the prominent statement “Trade hundreds of assets, from XRP to crypto to gold to fiat.” The Complainant’s homepage then allows visitors to either “Log In” or “Sign Up”. 5. Parties’ Contentions A. Complainant
The Complaint is relatively brief and makes the following allegations under paragraph 4(a) of the Policy:
The disputed domain name is confusingly similar to the Complainant’s RIPPLE marks. The disputed domain name is only a slightly misspelled version of the Complainant’s trademark registration.
The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent does not own any trademark or service mark registrations encompassing the domain name, nor any variations thereof; is not commonly known by the disputed domain name; and is not making a legitimate noncommercial or fair use of the disputed domain name.
Rather, the Complainant claims that the Respondent is running what appears to be an illegal phishing scam, and using the Complainant’s trademarks as an integral part of that scam. The website found at the disputed domain name presents a near duplication of the Complainant’s website, and uses the Complainant’s content and trademarks. In doing so it is apparent that the operator of the phishing scam/disputed domain name seeks to have unsuspecting consumers believe that the disputed domain name is not merely associated with the Complainant, but is, in fact, the Complainant. The Complainant has not given the Respondent any authority to operate under the name “Ripple Trade”.
Finally, the Complainant claims that the Respondent has registered and used the disputed domain name in bad faith. By using the disputed domain name in connection with a phishing scam, the Respondent has used it “primarily for the purpose of disrupting the business of a competitor”. The Respondent’s registration of the disputed domain name, and its connection to a clear replica of the Complainant’s website, suggests that the Respondent knew of the Complainant’s use of the RIPPLE trademarks and that the addition of the letter “s” in the disputed domain name was intentional. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, to succeed the Complainant must prove that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name was registered and is being used in bad faith.
These elements are discussed as follows. A. Identical or Confusingly Similar
The Complainant has provided evidence of its registered marks for RIPPLE and RIPPLE TRADE. The Complaint vaguely claims that there is confusing similarity between the disputed domain name and the “RIPPLE trademarks” – which presumably include the whole suite of the Complainant’s marks referenced in the Complaint.
The Panel has considered the issue of confusingly similarity against the RIPPLE and RIPPLE TRADE marks as the most relevantly similar for the purpose of the Policy, rather than the Complainant’s mark for RIPPLE COMMUNICATIONS. The Panel has not considered the issue against the Complainant’s trademark application for RIPPLE LABS, because a mere trademark application is not normally sufficient to establish trademark rights for the purpose of paragraph 4(a)(i) of the Policy.
There is little doubt that the disputed domain name is confusingly similar to the Complainant’s RIPPLE TRADE trademark. The disputed domain name only differs from that mark by the addition of the “s” to the first term of that mark. Such a difference is trivial and, as such, not sufficient to distinguish the Complainant’s mark.
Because it is relevant to the issue of bad faith (discussed further below), the Panel also considers that the disputed domain name is confusingly similar to the Complainant’s RIPPLE trademark. While that mark obviously includes a generic term, it has been registered with the USPTO and so is entitled to a presumption of distinctiveness. See EAuto, L.L.C. v. Triple S. Auto Parts d/b/a Kung Fu Yea Enterprises, Inc., WIPO Case No. D2000-0047; Owens Corning Fiberglas Technology, Inc v. Hammerstone,WIPO Case No. D2003-0903. The mark RIPPLE is wholly incorporated in the disputed domain name. In numerous previous cases under the Policy, it has been held that a domain name that wholly incorporates a complainant’s registered mark may be sufficient to establish confusing similarity for purposes of the Policy. See, e.g., BHP Billiton Innovation Pty Ltd, BMA Alliance Coal Operations Pty Ltd v. Cameron Jackson,WIPO Case No. D2008-1338.
The only differences between the disputed domain name and the RIPPLE trademark are the trivial addition of the “s” and the addition of the descriptive term “trade”. Paragraph 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) makes it clear that “The addition of merely generic, descriptive, or geographical wording to a trademark in a domain name would normally be insufficient in itself to avoid a finding of confusing similarity under the first element of the UDRP. Panels have usually found the incorporated trademark to constitute the dominant or principal component of the domain name.” Further, the term “trade” is obviously one with a close connection with the Complainant’s business. The addition of that term is therefore likely to increase the likelihood of confusion with the Complainant’s mark.
For these reasons, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s RIPPLE TRADE and RIPPLE trademarks. The Complainant has therefore established its case under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The second matter which the Complainant must establish is that the Respondent has no rights or legitimate interests in the disputed domain name.
Once the Complainant establishes a prima facie case against the Respondent on this ground, the burden shifts to the Respondent to rebut it. The overall burden of proof remains with the Complainant. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270.
While the Complaint is brief, and provides limited evidence, the Panel considers that it is barely sufficient to establish a prima facie case against the Respondent in the circumstances of this case, based on the following grounds put forward by the Complainant. The Complainant argues that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant states that the Respondent does not own any trademark or service mark registrations which include the disputed domain name, nor any variation thereof; is not commonly known by the disputed domain name; and is not making a legitimate noncommercial or fair use of the disputed domain name. As the Respondent has submitted no reply, there is no evidence to rebut these claims. Neither is there any evidence in the case file, including what is apparent from the nature of the Respondent’s website, to suggest otherwise. While the Respondent’s website appears to be one that relates to architecture, there is nothing on that website that shows any legitimate connection with the term “Ripple Trade”.
The Complainant also argues that the Respondent registered the disputed domain name to disrupt the Complainant’s business by establishing a “phishing” website. “Phishing” is a form of Internet fraud that aims to steal valuable information such as credit card details, social security numbers, user Ids, passwords, etc. A fake website is created that is similar to that of a legitimate organization, typically a financial institution such as a bank or insurance company and this information is used for identity theft and other illegitimate activities. See, e.g., Halifax Plc. v. Sontaja Sanduci,WIPO Case No. D2004-0237.
As evidence, the Complainant provides a (untranslated) screenshot of its own website and that of the Respondent. Those websites do not, on a superficial comparison, look closely similar, even though the Complainant describes them as “near identical”. The Panel admits to some difficulty in understanding how the Complainant makes this claim. The Complainant does not describe in any detail how the Respondent’s site is used as a phishing website. The Respondent’s website does not apparently appropriate any of the look and feel of the Complainant’s website, nor any of the Complainant’s trademarks. The Respondent’s website is not translated (the text is largely in Korean, which the Panel does not speak). Nevertheless, from the photographs and limited English included on that website, it is apparent that it appears to be a website relating to various types of architecture. The Complainant does not explain any of these differences.
Having regard to the lack of evidence and explanation in the Complaint on this issue, the Panel is not prepared to accept the Complainant’s allegation that the Respondent’s website is designed as a phishing website, and one which is designed to create the impression of being one operated by the Complainant.
While the Complainant has not provided evidence to support its claim that the Respondent operates a phishing website, the Complainant has presented a sufficient case that the Respondent otherwise lacks rights and legitimate interests in the disputed domain name. For this reason, the Panel finds that the Complainant has established its case under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances in which bad faith may be found. Each of those circumstances requires, or implies, that a respondent must at least have known, or ought to have known, of a complainant’s rights, and sought to take unfair advantage of them.
In this case, the record is somewhat equivocal as to whether the Respondent would have been aware of the Complainant’s rights in its RIPPLE TRADE trademark. This is because that mark was registered only very shortly before the filing of the Complaint in July 2015, and after the date the disputed domain name was registered in 2014. As relevantly noted in paragraph 3.1 of the WIPO Overview 2.0, “Generally speaking, although a trademark can form a basis for a UDRP action under the first element irrespective of its date …, when a domain name is registered by the respondent before the complainant’s relied-upon trademark right is shown to have been first established (whether on a registered or unregistered basis), the registration of the domain name would not have been in bad faith because the registrant could not have contemplated the complainant’s then non-existent right.”
It is not however necessary for the Panel to resolve this ambiguity, because the Panel considers there is a reasonable presumption that the Respondent would have been aware of the Complainant’s RIPPLE trademark. The Respondent has registered a confusingly similar domain name, which adds a word (“trade”) that is closely associated with the Complainant’s business. The Respondent’s website is presented in Korean, which is also one of the primary languages used by the Complainant on its own website. The disputed domain name is also almost identical to the domain name used by the Complainant in connection with its own website. There is no evidence however that the Respondent or its website has any legitimate connection with the term “Ripple Trade”. It seems very likely in this circumstance that the Respondent would have been aware of the Complainant’s own website and the Complainant’s associated trademarks, and registered the disputed domain name to benefit unfairly from that connection.
There are two other factors which support a finding of bad faith in this case. One is that the Respondent has submitted no reply to the allegations against it. Another is that the Respondent’s WhoIs details are obviously fake (as discussed above). This creates the impression that the Respondent is deliberately seeking to conceal its identity. In the circumstances of this case, use of false contact details reinforces the impression that the Respondent has acted in bad faith.
For these reasons, the Panel finds that the Complainant has established that the Respondent registered and has used the disputed domain name in bad faith. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name, , be transferred to the Complainant.
James A. Barker
Sole Panelist
Date: September 25, 2015
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