The Complainant is Bakkt Holdings, LLC, United States of America (“United States”), represented by DLA Piper US LLP, United States.
The Respondent is Super Privacy Service LTD c/o Dynadot, United States / Zhujiangtao, China. 2. The Domain Names and Registrar
The disputed domain names The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 28, 2020. On September 29, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On October 6 and 7, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 7, 2020, 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 October 9, 2020. 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 proceedings commenced on October 13, 2020. In accordance with the Rules, paragraph 5, the due date for Response was November 2, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 3, 2020. The Center appointed Adam Taylor as the sole panelist in this matter on November 9, 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 has provided cryptocurrency services under the name “Bakkt” since around August 2018. The Complainant owns United States trade mark no. 6002772 for BAKKT, filed July 12, 2018, registered March 3, 2020, in class 36. The Complainant’s website is located at “www.bakkt.com”. The disputed domain names were registered on November 24, 2019. As of August 11, 2020, the disputed domain names redirected to a login screen for a company called Binance, which also offers cryptocurrency services. The disputes domain names currently resolve to parking pages with pay-per-click (“PPC”) links relating mainly to cryptocurrency. 5. Parties’ Contentions A. Complainant A summary of the Complainant’s contentions is as follows: The disputed domain names are nearly identical to the Complainant’s trade mark. They wholly incorporate the Complainant’s trade mark, the only difference being the addition of duplicative letters “a”, “b”, and “t”. The disputed domain names are obvious misspellings of the Complainant’s mark. The Respondent lacks rights or legitimate interests in the disputed domain name. The Complainant has never licensed the Respondent to use its mark. There is no evidence that the Respondent has been commonly known by the disputed domain names or that it owns its own marks relating thereto. The Respondent has not made a bona fide offering of goods or services as it has used the disputed domain names to divert the Complainant’s customers or potential customers to competing services through the use of typo-squatting. The disputed domain names were registered and used in bad faith. The Respondent has intentionally created a likelihood of confusion in accordance with paragraph 4(b)(iv) of the Policy. The term “bakkt” has no ordinary meaning that might justify the Respondent registering variations thereof and redirecting them to the website of a competitor of the Complainant. The disputed domain names were registered well after the Complainant started using its distinctive name and are explicable only as an attempt to target the Complainant’s mark. Furthermore, the fact that the disputed domain names involve typo-squatting is of itself evidence of bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Under the Policy, the Complainant is required to prove on the balance of probabilities that: - the disputed domain names are identical or confusingly similar to a trade mark in which the Complainant has rights; The Complainant has established rights in the mark BAKKT by virtue of its registered trade mark for that term . WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.9 , makes clear that a domain name which consists of a common, obvious, or intentional misspelling of a trade mark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element. This stems from the fact that the domain name contains sufficiently recognisable aspects of the relevant mark. In this case, each disputed domain name adds a single duplicate letter to the Complainant’s trade mark and is plainly an intentional misspelling thereof. The Panel therefore finds that the Complainant has established the first element of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests As explained in section 2.1 of WIPO Overview 3.0 , the consensus view is that, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If not, the complainant is deemed to have satisfied the second element. Here, the Complainant has not licensed or otherwise authorised the Respondent to use its trade mark. Paragraph 4(c) of the Policy gives examples of circumstances which, if proved, suffice to demonstrate that a respondent possesses rights or legitimate interests in the disputed domain name. As to paragraph 4(c)(i) of the Policy, the Panel has concluded below that the Respondent has used the disputed domain names to intentionally attempt to attract, confuse, and profit from Internet users seeking the Complainant’s products and services. Such use of the disputed domain names could not be said to be bona fide. Nor is there any evidence that paragraphs 4(c)(ii) or (iii) of the Policy apply in the circumstances of this case. The Panel finds that the Complainant has established a prima facie case of lack of rights or legitimate interests and there is no rebuttal by the Respondent. The Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain names and that the Complainant has therefore established the second element of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith In the Panel’s view, it is obvious that the Respondent registered the disputed domain names with the Complainant’s distinctive trade mark in mind. The disputed domain names comprise intentional misspellings of the Complainant’s trade mark and previously resolved to the website of a competitor of the Complainant, despite the fact that there is no other obvious connection between the disputed domain names and cryptocurrency services. The Respondent has not come forward to deny the Complainant’s assertions of bad faith. It is difficult to conceive of any legitimate reason why the Respondent would wish to register the disputed domain names and the Respondent has offered no explanation. The disputes domain names currently resolve to parking pages with PPC links relating mainly to cryptocurrency. The Panel concludes from the foregoing that the Respondent has registered and used the disputed domain names in bad faith in accordance with paragraph 4(b)(iv) of the Policy. The Respondent has intentionally attempted to attract Internet users for commercial gain by creating a likelihood of confusion with the Complainant’s trade mark. The Panel therefore finds that the Complainant has established the third element of paragraph 4(a) of the Policy. 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 names Adam Taylor
- the Respondent has no rights or legitimate interests in respect of the disputed domain names; and,
- the disputed domain names have been registered and are being used in bad faith. A. Identical or Confusingly Similar
Sole Panelist
Date: November 20, 2020
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