The Complainant is Bitrise Limited, United Kingdom, represented by Withers LLP, United Kingdom.
The Respondent is Kenneth Samson, Nigeria. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 10, 2019. On the same date, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. The Registrar transmitted by email to the Center its verification response, confirming that the Respondent is listed as the registrant and providing the contact details, on December 10, 2019. The Center verified that the 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 proceedings commenced on December 12, 2019. In accordance with the Rules, paragraph 5, the due date for Response was January 1, 2020. The Center received an email from a third party on December 16, 2019, claiming its physical address was used for purposes of registering the Domain Name. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on January 2, 2020. The Center appointed D. Brian King as the sole panelist in this matter on January 10, 2020. 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 A. The Parties The Complainant is Bitrise Limited, a company incorporated in England and Wales under number 9594679 with its principal place of business in the United Kingdom and additional offices in Hungary and the United States of America. The Complainant operates a continuous integration and delivery “software as a service” platform. According to the Complainant, it serves over 100,000 clients, including “Fox”, “TNT”, and “Virgin”, and its website receives an average of 600,000 visitors per month (Annex 11 to the Complaint). The Complainant further notes that it has used the name “Bitrise” in commerce since May 2015, and that its business and brand have been recognized in such publications as “TechCrunch” and “BusinessWire” (Annex 12 to the Complaint). The Respondent has not provided the Panel with any information on his history or activities. B. The Mark The Complainant is the owner of the BITRISE trademark in the European Union in classes 9, 38, and 42: Trademark Jurisdiction Registration Date Registration Number BITRISE European Union October 24, 2017 016913352 The Complainant is the also the proprietor of the The Domain Name The Complainant begins by broadly arguing that the Respondent registered and is using the Domain Name as part of a larger bitcoin-based Ponzi scheme. In support of this assertion, the Complainant has submitted a report by an independent investigator, Bishop IP Investigations (the “Investigator’s Report” or “Report”) (Annex 2 to the Complaint). The Investigator’s Report suggests that the Respondent is seeking to trick Internet users into paying for fraudulent investment services through a network of websites, including the Website. In particular, the Report cites what it characterizes as unrealistic promised rates of return and a referral system typical of Ponzi schemes. It also includes complaints by Internet users who claim to have fallen victim to the alleged scam. With respect to the elements of its claim under the Policy, the Complainant first submits that the Domain Name is confusingly similar to its registered trademark. The Domain Name wholly incorporates the BITRISE trademark, and, according to the Complainant, the addition of the Top-Level Domain (“TLD”) “.club” does nothing to eliminate the confusing similarity. The Complainant next argues that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Complainant states that it has not licensed or otherwise permitted the Respondent to use its BITRISE trademark. In this regard, the Complainant further relies on the apparently fabricated version of its certificate of incorporation included on the Website (Annex 4 to the Complaint). Finally, the Complainant submits that the Domain Name was registered and is being used in bad faith. The Complainant asserts that the Respondent must have been aware of the Complainant’s rights in the BITRISE trademark when it registered the Domain Name, given the notoriety of the mark, its long use in commerce, and the Respondent’s own replication of the mark on the Website. This, the Complainant argues, demonstrates that the Respondent is intentionally trying to attract internet users to the Website for commercial gain by creating a likelihood of confusion with the Complainant’s mark. The Complainant additionally asserts that the Respondent sought to disrupt the Complainant’s business through its actions and hoped to sell the Domain Name for profit. According to the Complainant, these circumstances further support a finding of bad faith registration and use. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy stipulates that the Complainant must prove the following three elements in order to be successful in its action: (i) the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith. Paragraph 4(c) of the Policy sets out illustrative circumstances that could demonstrate a respondent’s rights or legitimate interests in a domain name for purposes of paragraph 4(a)(ii) above. Paragraph 4(b) of the Policy sets out illustrative circumstances that could demonstrate registration and use of a domain name in bad faith for purposes of paragraph 4(a)(iii) above. A. Identical or Confusingly Similar The Panel finds that the Domain Name wholly incorporates the Complainant’s BITRISE trademark, with the mere addition of the “.club” TLD. The addition of the TLD does not diminish the confusing similarity of the Domain Name to the Complainant’s mark. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, section 1.11 (“WIPO Overview 3.0”). As such, the Panel has no difficulty in finding that the Complainant has satisfied the first element of the test under paragraph 4(a) of the Policy. B. Rights or Legitimate Interests Many prior UDRP panels have found that a complainant only needs to establish a prima facie case in relation to the second element of the test under paragraph 4(a) of the Policy (see, e.g., Belupo d.d v. WACHEM d.o.o.,WIPO Case No. D2004-0110; MatchNet plc v. MAC Trading,WIPO Case No. D2000-0205). Once a prima facie showing is made, the burden shifts to the Respondent to prove that it does have rights or legitimate interests in the Domain Name. The present Panel agrees that the Complainant need only make out a prima facie case and finds that it has met that standard here. The Complainant has demonstrated that it registered the BITRISE trademark in October 2017, nearly two years before the Respondent registered the Domain Name. Coupled with the Complainant’s use of the mark in commerce since 2015, this suggests that the Respondent must have been aware of the Complainant’s rights in the BITRISE mark when registering the Domain Name. Indeed, the fact that the Website features the Complainant’s mark and company registration number shows that the Respondent was actually aware of the Complainant’s rights at the time the Domain Name was registered. Moreover, the nature of the domain Name carries a high risk of implied affiliation with the Complainant. See WIPO Overview 3.0, section 2.5.1. In these circumstances, the Complainant has made out a prima facie case that the Respondent lacks any rights or legitimate interests in the Domain Name. The Respondent has failed to provide any contrary evidence, despite having had the opportunity to do so. Accordingly, the Panel finds that the Complaint succeeds as to the second element of the test under paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith The third element of the test under paragraph 4(a) requires proof that the Domain Name has been registered and is being used in bad faith. Paragraph 4(b) of the Policy sets out illustrative circumstances that constitute evidence of bad faith registration and use. The Panel finds that the circumstance set out in paragraph 4(b)(iv) of the Policy is present here. The Panel has already concluded above that the Respondent had knowledge of the Complainant’s rights in the BITRISE mark when it registered the Domain Name. The Complainant has further established that the Respondent seeks to attract Internet users to the Website by creating a likelihood of confusion as to source, sponsorship or affiliation – specifically, by intentionally giving the false impression that the Website is affiliated with the Complainant. The Respondent’s effort to benefit commercially is equally clear: the Website offers a purported commercial service in connection with bitcoin investment and trading. These circumstances satisfy paragraph 4(b)(iv) of the Policy and sufficiently establish bad faith registration and use on the Respondent’s part. As noted above, the Complainant has further alleged that the Respondent’s activities are part of a broader fraudulent scheme, that the Respondent attempted to disrupt the Complainant’s business, and that the Respondent sought to sell the Domain Name for an unfair profit. The Complainant has produced credible evidence to support these assertions in the form of the Investigator’s Report. However, given the finding of bad faith registration and use already made above, the Panel does not need to render any decision on these contentions in order to resolve this case. On the foregoing grounds, the Panel finds that the Complainant has satisfied its burden with respect to the third element under paragraph 4(a) of the Policy as well. 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 Domain Name D. Brian King
Sole Panelist
Date: January 23, 2020
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