WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
BTCDRAFT INC. v. Brian Boyer
Case No. D2018-0613
1. The Parties
The Complainant is BTCDRAFT INC. of Ottawa, Ontario, Canada, represented by Andrews Robichaud P.C., Canada.
The Respondent is Brian Boyer of Mesa, Arizona, United States of America ("United States"), self-represented.
2. The Domain Name and Registrar
The disputed domain name <draftcoin.com> is registered with FastDomain, Inc. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 20, 2018. On March 21, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 22, 2018, 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 April 5, 2018, the Complainant submitted an amended Complaint in response to a request for clarification sent by the Center.
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 April 12, 2018. In accordance with the Rules, paragraph 5, the due date for Response was May 2, 2018. The Response was filed with the Center on May 2, 2018.
The Center appointed Adam Taylor as the sole panelist in this matter on May 18, 2018. 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
On October 26, 2014, the Complainant (reference to which includes its predecessors) made a post on a cryptocurrency forum announcing the launch of a new cryptocurrency called "Draftcoin", intended for use in association with online gaming and gambling. That post has since been viewed over 19,000 times.
On May 23, 2015, the Complainant began to create the Draftcoin cryptocurrency's "blockchain". The Complainant itself "mined" all of Draftcoin cryptocurrency during 2015 and submitted it to various cryptocurrency exchanges from late 2015.
On November 23, 2015, the first Draftcoin was sold for USD 22. Since then, Draftcoin has grown to the point where it is traded each day. In January 2018, Draftcoin reached its all-time high market capitalisation of some USD 15 million. As of March 1, 2018, Draftcoin's market capitalisation was almost USD 5 million, of which approximately USD 270,000 had been traded in the previous 24 hours.
Draftcoin can only be used on the Complainant's website for online gaming and gambling purposes.
The disputed domain name was registered on February 13, 2017.
On November 1, 2017, the Complainant applied for a Canadian trade mark trade mark for DRAFTCOIN under application number 1865675.
On November 23, 2017, the Complainant applied for a United States trade mark for DRAFTCOIN in class 36, under application number 87696139, with a first use date of October 2015.
As of January 8, 2018, the disputed domain name resolved to a holding page with a logo consisting of a soccer ball and the stylised words "DRAFT COIN" alongside the following text: "Future site of daily fantasy sports. Only using bitcoin. Play from anywhere at anytime." Beneath this was an email address for further information.
There was an exchange of emails between the Complainant and Respondent during the period January 9 to 12, 2018. The Complainant initiated the correspondence by asserting rights in the name "Draftcoin" and inviting the Respondent to transfer the disputed domain name to it. In the course of the discussion, the Respondent:
- stated that he had "never really started" on his (unspecified) project for the disputed domain name and asked for the location of the Complainant's website for Draftcoin;
- stated that two of his "favourite things" were "sports" and "crypto";
- stated that the many other "crypto" domains were valued much more than the USD 100 being offered by the Complainant and that it was not doing him any damage "to sit on the domain"; and
- offered to sell the disputed domain name to the Complainant for USD 5,000.
On or around February 17, 2018, the webpage at the disputed domain name consisted of a single article apparently authored by the Respondent entitled "2018 Mock Draft: Browns Take Josh Allen" under the heading: "draftcoin.com. Draft News and Predictions".
5. Parties' Contentions
The following is a summary of the Complainant's contentions:
In addition to its trade mark applications, the Complainant owns common law rights in the term "Draftcoin" based on its extensive use. The name is proprietary to the Complainant. The term "Draftcoin" is a distinctive identifier, which is associated by millions of persons around the world solely with the Complainant's online gaming and gambling services.
The disputed domain name is identical or confusingly similar to the Complainant's trade mark.
The Respondent lacks rights or legitimate interests in the disputed domain name. He himself has stated that there is no harm in parking the disputed domain name indeterminately.
The Respondent has not attempted to demonstrate use or preparation for use for a bona fide offering of goods or services.
The Respondent is not commonly known by the term "Draftcoin".
The Respondent is not making a legitimate noncommercial or fair use of the disputed domain name.
The Respondent's attempted use of the website for an article relating to the football draft was clearly a result of the discussions with the Complainant and does not constitute a legitimate interest.
The disputed domain name was registered and is being used in bad faith. In particular, the Respondent registered the disputed domain name primarily for the purpose of sale to the Complainant in accordance with paragraph 4(b)(i) of the Policy.
As someone whose "favourite thing" is cryptocurrency, the Respondent would have been well aware of the Complainant's mark at the time of registration of the disputed domain name in early 2017. By then the Complainant's mark was steadily gaining worldwide popularity.
The Respondent's initial webpage shows that he was aware of the Complainant's mark and website, which uses cryptocurrency for gaming. He attempted to register the disputed domain name ahead of the Complainant for the purpose of selling it back to the Complainant at a profit.
The Respondent's website was parked for over a year until a few weeks after the Complainant's discussions with the Respondent to purchase the disputed domain name, following which it was changed to a generic website with a single article about a mock NFL draft.
The Respondent declined the Complainant's offer of USD 500, asking for USD 5,000, which is well above the Respondent's out of pocket costs directly related to the disputed domain name.
The following is a summary of the Respondent's contentions:
The Respondent registered the disputed domain name to create a fantasy sports site that would allow users to create fantasy football teams and to pay league fees using bitcoin. The Respondent selected the disputed domain name because the word "draft" is part of the process when you draft your football team at the start of the season and "coin" is part of the term "bitcoin", which would be used for payment.
No trade marks for "Draftcoin" had been published at the time when the Respondent registered the disputed domain name.
The Respondent encountered obstacles in the early stages of the project. He discovered that he could not use third party fantasy plug-ins because they would not cater for the differences between US dollars and bitcoins. The Respondent also had difficulty raising the necessary funds, which caused him to abandon the project after several months
The Respondent still plans to use the disputed domain name in the future for a blog about United States football. The current webpage does not reflect this as it has not yet generated any traffic.
The Respondent has "been into" bitcoin currency for the last couple of years and was very excited to hear from the Complainant about the success of its new cryptocurrency. The Complainant's initial email about its project with the same name was the first time the Respondent had heard of "draftcoin" being a currency itself.
The Respondent was simply attempting to recoup his losses incurred when attempting to launch his original idea. When he bought the disputed domain name, he had no intention of selling it and no knowledge that the name was already being used. He is not a member of the forum where the currency was first launched by the Complainant. He first visited the Complainant's website relating to Draftcoin when the Complainant told him what it had been doing.
6. Discussion and Findings
A. Informal Response
The Response is in the form of an email to the Center, which does not comply with the formal requirements set out in paragraph 5 of the Rules. For example, there is no statement of truth. The Panel has nonetheless decided to admit the Response in accordance with its powers under paragraph 10(d) of the Rules but to bear in mind the Response's non-compliance with the Rules, including in particular the absence of a statement of truth, when weighing up the Respondent's assertions in this case.
B. Identical or Confusingly Similar
The Complainant has established rights in the distinctive term "Draftcoin" by virtue of its unregistered trade mark rights arising from its extensive and worldwide use of that name since 2014, as evidenced by the Complainant.
Disregarding the domain name suffix, the disputed domain name is identical to the Complainant's trade mark.
The Panel therefore finds that the Complainant has established the first element of paragraph 4(a) of the Policy.
C. Rights or Legitimate Interests
As explained in section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("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 sets out three ways in which a respondent can demonstrate rights or legitimate interests.
1. Before having notice of the dispute, the respondent used or made demonstrable preparations to use, the disputed domain name for agood faith offering of goods or services.
Here, the web page as of January 8, 2018, mentioned in section 4 above, is the only evidence of use of the disputed domain name which pre-dates the Complainant's first communication to the Respondent on January 9, 2018. In the Panel's view this holding page, which refers to a "future site", does not amount to an offering of goods or services.
Indeed, the Respondent himself has described himself at that time as "sitting" on the disputed domain name.
The Respondent has mentioned alleged preparations for use of the disputed domain name including investigating suitable "third party fantasy plug-ins" and attempting to raise funds. However, the requirement of "demonstrable preparations" means that such assertions must be supported by credible evidence. And the Respondent has produce no such evidence.
2. The respondent, whether as an individual, business or other organisation, has been commonly known by the domain name.
The Respondent has not claimed to have been commonly known by the domain name.
3. The respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or tarnish the trade mark.
The Respondent is open about the fact that he registered the disputed domain name for commercial purposes. And, for reasons explained in section 6.D. below, the Panel considers that the Respondent's use of the disputed domain name for an article relating to the United States football draft following the exchange of correspondence with the Complainant was a purely defensive move and not a bona fide use of the disputed domain name.
Accordingly, the Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name and that the Complainant has therefore established the second element of paragraph 4(a) of the Policy.
D. Registered and Used in Bad Faith
The Panel must first consider the likelihood, or otherwise, that the Respondent was aware of the Complainant's "Draftcoin" mark when he registered the disputed domain name on February 13, 2017. For the following reasons, the Panel is not convinced by the Respondent's denial of such knowledge:
1. The Complainant has established a significant reputation in relation to its "Draftcoin" cryptocurrency, which was launched some two and a half years before the Respondent registered the disputed domain name – notwithstanding that, as observed by the Respondent, the Complainant's trade mark applications had not been published (or indeed filed) when the disputed domain name was registered.
2. In his correspondence with the Complainant, the Respondent admitted that "crypto" was one of his "favourite things" and indeed the initial holding page at the website at the disputed domain name made reference to the future website's alleged intended use of bitcoin. Clearly the Respondent has a reasonable degree of familiarity with the world of cryptocurrency.
3. While the term "Draftcoin" consists of two dictionary words, in the Panel's view the combination is not an obvious one.
4. The Respondent's explanation for his selection of the disputed domain name lacks credibility. He says that his purpose was to create fantasy football teams, hence the word "draft" referable to the draft process in United States football, with league fees to be payable by bitcoin, hence the word "coin". However, to the Panel, this seems an unlikely choice of name for such a project, not least because the name gives the overall impression that it denotes a kind of "coin". While the cryptocurrency aspect is indeed a component of the Respondent's alleged project, the Respondent's description makes clear that this is not its main focus. Furthermore, as mentioned in section 6.C. above, the Respondent has produced no evidence supporting his claim that he has actually embarked on this project.
5. The Respondent's addition of the "Mock Draft" article to the website shortly after the exchange of the correspondence with the Complainant casts further doubt on the Respondent's version of events. In the Panel's view, this bears all the hallmarks of a defensive move designed to shore up the Respondent's justification for registration of the disputed domain name.
In view of these matters, as well as the correspondence between the parties referred in section 4 above, the Panel considers it most likely that the Respondent registered the disputed domain name for sale to the Complainant at a price which exceeded the Respondent's out-of-pocket acquisition costs in accordance with paragraph 4(b)(i) of the Policy. This is one of the non-exhaustive examples of registration and use in bad faith.
The Panel therefore finds that the Complainant has established the third element of paragraph 4(a) of the Policy.
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 <draftcoin.com> be transferred to the Complainant.
Date: June 1, 2018