The Complainant is Bitrise Limited, United Kingdom, represented by Withers LLP, United Kingdom.
The Respondent is Dalton Kline, Bitrise Trade Ltd, United Kingdom. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 6, 2020. On April 6, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same date, 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. 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 April 16, 2020. In accordance with the Rules, paragraph 5, the due date for Response was May 6, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 7, 2020. The Center appointed Andrew D. S. Lothian as the sole panelist in this matter on May 15, 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 The Complainant’s business was originally founded in Hungary in October 2014 and the Complainant itself was incorporated in the United Kingdom under company no. 9594679 on May 16, 2015. The Complainant provides a continuous integration and delivery “software as a service” platform named “Bitrise”. Said platform facilitates the development of mobile applications and has around 100,000 international clients, including the developers of many well-known Internet and mobile applications. According to press reports provided by the Complainant, the Complainant completed its first round of funding of USD 200,000 in 2015 and became profitable in 2016. In July 2017, the Complainant raised “Series A” funding of USD 3.2 million and at that stage was reported to have tripled its revenue four times a year and to have 20,000 users. In June 2019, the Complainant was reported to have raised “Series B” funding of USD 20 million. The Complainant is the owner of European Union registered trademark no. 16913352 for the word mark BITRISE in international classes 9 (software and software platforms), 38 (telecommunications and electronic messaging services) and 42 (software as a service, related advice and consultancy services), filed on June 26, 2017 and registered on October 24, 2017. The Complainant registered the domain name The disputed domain name was created on September 30, 2017. The Registrar-verified registrant is named as Dalton Kline, together with an organization name of Bitrise Trade Ltd, both of London, United Kingdom. A private limited company by the name of Bitrise Trade Ltd was incorporated in the United Kingdom on August 17, 2018 under company no. 11522298. Mr. Kline is listed as the sole director and shareholder of said company. Said company was struck off the companies register on January 14, 2020 and was dissolved on January 21, 2020. The website associated with the disputed domain name appears to offer a “smart investment platform” connected to cryptocurrency trading and promises substantial investment returns, such as “12.5% [profit] Daily for 15 days”. A copyright statement at the foot of the home page states “© 2018 Bitrise Limited. […]” while on another page it states “© 2018 BitRise Trade Ltd. […]”. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is identical or confusingly similar to a trademark in which it has rights; that the Respondent has no rights or legitimate interests in the disputed domain name; and that the disputed domain name has been registered and is being used in bad faith. The Complainant asserts that it has built substantial goodwill in the “Bitrise” name since 2015 and points to its client base, press coverage, substantial fund raising, and number of monthly average users in support of this contention. The Complainant describes its registered trademark and asserts that the use of the disputed domain name infringes the Complainant’s trademark rights, adding that the Complainant’s mark is created from the two words “bit” and “rise”, and is uniquely associated with the Complainant. The Complainant notes that the disputed domain name adds the word “trade”, which it asserts provides no separation from the Complainant’s BITRISE trademark, asserting that said trademark is the dominant part of the disputed domain name. The Complainant contends that the Respondent has no right or authorization to use the Complainant’s mark, that the Respondent holds no registered trademarks for BITRISE and has not been licensed by the Complainant to use said mark, adding that the mark is not a generic term and is used to identify the services provided by the Complainant. The Complainant notes that it suspects that the Respondent is using the Complainant’s mark to carry out misleading financial activities in the form of a fraudulent financial cryptocurrency investment platform and that the Respondent is falsely representing itself as trading on various stock exchanges around the world. The Complainant asserts that the Respondent is deliberately misrepresenting to the public that it is associated and otherwise connected with the Complainant. The Complainant contends that the Respondent, by registering and using the disputed domain name, has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website and that the Respondent’s actions were taken to disrupt the Complainant’s business generally. The Complainant concludes that the Respondent is engaging in an attempt to mislead the public into believing that the Parties are connected and that the Respondent is using the Complainant’s name to commit a fraudulent scam, which is likely to cause significant damage to the Complainant’s name and reputation. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied: (i) the disputed 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 disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The first element under the Policy functions primarily as a standing requirement, the intent being to assess whether the Complainant has a bona fide basis for the Complaint (The Perfect Potion v. Domain Administrator,WIPO Case No. D2004-0743). The inquiry is typically made in two parts, first, by assessing whether the Complainant has UDRP-relevant rights in a trademark, and secondly, by conducting a straightforward side-by-side comparison of such trademark with the disputed domain name to determine whether the mark is recognizable therein. The Complainant commences its submissions on this topic with substantial and detailed allegations of trademark infringement according to its local law. Such allegations are not relevant to the first element assessment, nor indeed to the overall assessment under the Policy. Although there may be some conceptual overlap, trademark infringement and abusive registration of domain names within the meaning of paragraph 4(a) of the Policy are not the same thing and the fact that a particular set of circumstances may constitute trademark infringement in any particular jurisdiction has of itself no bearing as such on whether a domain name is an abusive registration (see Delta Air Transport NV (trading as SN Brussels Airlines) v. Theodule De Souza,WIPO Case No. D2003-0372 and 1066 Housing Association Ltd. v. Mr. D. Morgan,WIPO Case No. D2007-1461). Returning to the first element assessment, the Panel is satisfied that the Complainant has UDRP-relevant rights in its BITRISE registered trademark described in the factual background section above. For the purposes of the first element, it is not necessary that such mark be registered prior to the registration date of the disputed domain name. In any event, the Panel is also satisfied, based on the Complainant’s unchallenged evidence, that the Complainant has established unregistered trademark rights in the BITRISE mark pre-dating the disputed domain name due to the substantial nature of its activities under that name since 2015 including its rapid building of a significant customer base. Comparing the Complainant’s mark to the second-level portion of the disputed domain name, the Panel notes that these are alphanumerically identical. The generic Top-Level Domain (“gTLD”), in the case of the disputed domain name, “.trade”, is typically disregarded for the purposes of comparison as being generally required for technical reasons only (though in some limited cases bringing meaning to the domain name). In these circumstances, the Panel finds that the disputed domain name is identical to the Complainant’s trademark and therefore that the first element under the Policy has been established. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy lists several ways in which the Respondent may demonstrate rights or legitimate interests in the disputed domain name: “Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii): (i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or (iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.” The consensus of previous decisions under the Policy is that a complainant may establish this element by making out a prima facie case, not rebutted by the respondent, that the respondent has no rights or legitimate interests in a domain name. In the present case, the Complainant submits that the Respondent has no right or authorization to use the Complainant’s mark and that the Respondent holds no registered trademarks for BITRISE and has not been licensed by the Complainant to use said mark. The Complainant also asserts that its BITRISE mark is not a generic term, that it suspects that the Respondent is using the Complainant’s mark to carry out misleading financial activities in the form of a fraudulent financial cryptocurrency investment platform and that the Respondent is falsely representing itself as trading on various stock exchanges around the world. The Complainant’s conclusion is that the Respondent is deliberately misrepresenting to the public that it is associated with and otherwise connected to the Complainant. On the basis of the Complainant’s above submissions, the Panel finds the requisite prima facie case to be established. The burden of production therefore shifts to the Respondent to bring forward evidence of rights or legitimate interests in the disputed domain name. The Respondent has not filed a Response and has not otherwise engaged with the present proceeding. Accordingly, it has put forward no submissions or evidence which might have supported a claim of rights or legitimate interests in respect of the disputed domain name. The Respondent company is named both in the WhoIs record for the disputed domain name and in certain places on the associated website. The uncontradicted submissions and evidence of the Complainant indicate that this company has been dissolved. This suggests to the Panel that it should not be continuing to hold itself out as carrying on business via the disputed domain name and associated website and indeed that it could not make any bona fide offering of goods or services thereby (see, for example, Bitfury Group Limited v. Whois Agent - Domain Protection Services Inc. / DomainWebber,WIPO Case No. D2019-1303). In all of these circumstances, the Panel finds that the Respondent has failed to rebut the Complainant’s prima facie case and accordingly that the second element under the Policy has been established. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy provides four, non-exclusive, circumstances that, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith: “(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or (ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or (iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.” The Complainant’s case on this element focuses principally on paragraph 4(b)(iv) of the Policy. The Complainant submits that, in registering and using the disputed domain name, the Respondent is engaging in an attempt to mislead the public into believing that the Parties are connected when they are not, and that the Respondent is intentionally using the Complainant’s distinctive BITRISE mark in the disputed domain name to support a fraudulent scam involving crypto-currency investment. The Panel notes that the disputed domain name was registered after the Complainant’s application for its BITRISE mark was filed, but before it had proceeded to registration. In some circumstances, this might have suggested that the Respondent may not have had knowledge of the Complainant or its rights at the time when it registered the disputed domain name and that it had coincidentally combined the ordinary English words “bit” and “rise” independently of the Complainant’s rights. However, the Panel views this as unlikely on the facts of the present case. First, without evidence to the contrary, these words appear to be a relatively unusual and distinctive combination. Secondly, the Complainant’s BITRISE mark had attracted substantial notoriety in the field of online platforms over several years prior to the registration of the disputed domain name, as demonstrated by the above-described press coverage produced by the Complainant. This provides ample independent evidence of the Complainant’s rapid and substantial growth in customers and revenues and its various fund raising activities, which are likely to have come to the notice of the Respondent who appears to have been engaged in a similar line of commerce, even if for fraudulent purposes. In these circumstances, the Panel finds on the balance of probabilities that the disputed domain name was not registered by the Respondent by coincidence but rather in the knowledge of the Complainant’s rights and with intent to target these. Turning to the use to which the disputed domain name has been put, the Panel notes that the Respondent’s website promotes crypto-currency investment with promises of very substantial returns in short periods. The Complainant makes various allegations regarding this website, notably that it is a fraudulent scheme involving some form of scam which seeks to benefit from the impression of an association with the Complainant’s BITRISE mark. These allegations are serious and, in the Panel’s opinion, call for an answer from the Respondent. The Panel therefore regards it as significant that the Respondent has chosen neither to deny the Complainant’s contentions nor otherwise to answer or comment upon them. No evidence has been offered by the Respondent suggesting that the disputed domain name might have been registered and used for a good faith purpose. The Panel accepts the Complainant’s contention that the actual use of the Complainant’s own limited company name in some places on the Respondent’s website, including the landing page itself, provides support for its assertion that the Respondent’s website and the corresponding disputed domain name mislead Internet users, for commercial gain, as to an association or endorsement by the Complainant. In other places, the Respondent’s website gives the name of the now dissolved company, which is ipso facto incapable of carrying on a bona fide business and yet was holding itself out as such when the Complaint was filed. The Panel accepts the Complainant’s submission that such use amounts to intentionally attempting to attract for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark as to the affiliation or sponsorship of the Respondent’s website in terms of paragraph 4(b)(iv) of the Policy. In all of the above circumstances, the Panel finds that the disputed domain name has been registered and is being used in bad faith and accordingly that the third element under the Policy has been established. 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 Andrew D. S. Lothian
Sole Panelist
Date: May 29, 2020
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