WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ripple Labs, Inc. d/b/a Ripple v. Alexy Bermanov
Case No. D2016-0464
1. The Parties
Complainant is Ripple Labs, Inc. d/b/a Ripple of San Francisco, California, United States of America, represented by Feldman Gale, P.A., United States of America.
Respondent is Alexy Bermanov of New York, New York, United States of America.
2. The Domain Name and Registrar
The disputed domain name <rippleltrade.com> is registered with Registrar of Domain Name REG.RU LLC (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 8, 2016. On March 8, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 18, 2016, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.
The Complaint was submitted in English. On March 30, 2016, the Center informed the parties in both English and Russian that the Registrar disclosed the language of the Registration Agreement as Russian. On March 30, 2016, Complainant submitted a request to proceed in English, indicating in part that Respondent's contact information suggests that he can understand and communicate in English. Respondent did not comment on Complainant's request to proceed in English.
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 in both Russian and English, and the proceedings commenced on April 8, 2016. In accordance with the Rules, paragraph 5, the due date for Response was April 28, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on April 29, 2016.
The Center appointed Dina Leytes as the sole panelist in this matter on May 18, 2016. 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
Complainant is the owner of several U.S. trademark registrations and applications containing the term RIPPLE, including inter alia a standard character mark for RIPPLE TRADE, U.S. Registration No. 4,744,899 in International Class 38 for "Peer-to-Peer network computer services, namely electronic transmission of financial data via computer terminals and electronic devices; transmission of financial information by electronic communications networks," (collectively, the "RIPPLE Marks"). Complainant has used some of the RIPPLE Marks in commerce as early as July 31, 1998. In addition, Complainant owns and operates the domain name <rippletrade.com>, which resolves to a website that directs the visitor to an explanation of Complainant's wallet application, now seemingly defunct.
Respondent appears to be an individual, Alexy Bermanov, located in the United States of America.
According to the registration information provided by the Registrar, the disputed domain name <rippleltrade.com> was registered on March 19, 2015. The registration was set to expire on March 20, 2016. The website is currently suspended and administratively locked by the Registrar pending a decision by the Panel. The disputed domain name currently resolves to a page indicating that the viewer should contact the hosting provider for more information.
5. Parties' Contentions
Complainant alleges that the disputed domain name <rippleltrade.com> is a slightly misspelled version of the Complainant's legitimate website <rippletrade.com>. Complainant alleges the disputed domain name has been used to run what appears to be an illegal phishing scheme that is not affiliated with Complainant.
Further, Complainant alleges that Respondent is not making a legitimate noncommercial or fair use of the disputed domain name. Complainant alleges that the disputed domain name redirects users to Complainant's own webpage "www.rippletrade.com". Complainant alleges that Respondent seeks to have unsuspecting consumers believe that Complainant is the source of the phishing scheme. Complainant further indicate that there is no affiliation between Complainant and Respondent that would justify the use of Complainant's mark by Respondent in this manner.
Complainant also alleges the "www.rippleltrade.com" website incorporates a near-duplication of Complainant's website. Complainant indicates that the disputed domain name is nearly identical and/or confusingly similar to the marks which Complainant owns, and that Complainant has not given Respondent any authority to operate, maintain or register a website in its name. Rather, Complainant alleges, Respondent is operating the disputed domain name with the intent for commercial gain to misleadingly divert consumers from Complainant's goods and services offered under Complainant's marks, and primarily operates the website for the purpose of disrupting the business of a competitor. As an additional indication of bad faith, Complainant states it sent Respondent a cease and desist letter via certified electronic mail on December 21, 2015, and the letter was returned as undeliverable. Complainant further alleges that the administrative contact information of Respondent is incorrect, and that the New York street address provided by Respondent does not exist, and that Complainant suspects Respondent provided false contact details to hide his true identity.
Respondent did not reply to Complainant's contentions.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, a 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;
(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.
Complainant bears the burden of proof on each of these elements. If a respondent does not submit a response to the complaint, a panel may draw appropriate inferences from such a default. However, Complainant must still support its assertions with actual evidence to succeed in a UDRP proceeding. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") at paragraph 4.6 and the cases cited therein.
A. Language of the Proceeding
The Rules, paragraph 11, provide that unless otherwise agreed by the Parties or specified otherwise in the Registration Agreement between the respondent and the registrar in relation to the disputed domain name, the language of the proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine the language of the proceeding based on the circumstances of the case. In this proceeding, the parties both have addresses in the United States, while the Registrar is in the Russian Federation. According to the information received from the Registrar, the language of the Registration Agreement for the disputed domain name is Russian.
Given the provided submissions and circumstances of this case, the Center has notified the Parties that it would proceed as follows:
1) Accept the Complaint as filed in English;
2) Accept a response filed in either Russian or English;
3) Appoint a panel familiar with both languages mentioned above, if available.
The Center also notified the parties that the power to decide the language of the proceedings lay with the panel to be appointed. The Center thereafter proceeded to issue its case-related communications to the parties in both English and Russian.
Respondent did not reply to Complainant's request to proceed in English, therefore it did not express in any way that it cannot answer the allegations since it does not understand English.
Complainant has submitted its Complaint and supporting evidence in English and, therefore, if Complainant were required to submit all documents in Russian, the administrative proceeding would be unduly delayed and Complainant would have to incur substantial expenses for translation. Lastly, the evidence before the Panel indicates that the disputed domain name was used to host a website largely duplicating Complainant's website, in English. Therefore, in consideration of the above circumstances and in the interest of fairness to both Parties, the Panel hereby decides, under paragraph 11(a) of the Rules, that English shall be the language of administrative proceedings in this case.
B. Identical or Confusingly Similar
The Panel finds that Complainant has registered trademark rights in the RIPPLE Marks. The Panel further finds that the disputed domain name is confusingly similar to Complainant's RIPPLE Marks. The disputed domain name incorporates Complainant's RIPPLE TRADE mark in its entirety, and includes a common misspelling of that mark with the addition of the letter "l". Prior UDRP panels have held that when a domain name wholly incorporates a complainant's registered trademark, this may be sufficient to establish confusing similarity for purposes of the Policy. See, e.g., Hoffmann-La Roche Inc., Roche Products Limited v. Vladimir Ulyanov, WIPO Case No. D2011-1474; Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525; Bayerische Motoren Werke AG v. bmwcar.com, WIPO Case No. D2002-0615; RapidShare AG, Christian Schmid v.InvisibleRegistration.com, Domain Admin, WIPO Case No. D2010-1059.
Accordingly, the Panel finds that the requirements of paragraph 4(a)(i) of the Policy have been met by Complainant.
C. Rights or Legitimate Interests
To prevail on this element, Complainant must make out at least a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name. Paragraph 4(c) of the Policy provides a non-exhaustive list of circumstances that may be used to show a respondent's rights or legitimate interests in a domain name:
(i) before any notice to the respondent of the dispute, the respondent's 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) the respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or
(iii) the respondent is 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 Panel finds that Complainant has established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name.
Based on the record before the Panel, Respondent has not made demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services. Respondent is not affiliated with Complainant and is not known by the RIPPLE Marks. Nor is there evidence that Respondent sought or obtained trademark rights in "Ripple" or any variation thereof. Respondent has not received any license, authorization or consent to use the Ripple Mark in any manner from Complainant. Finally, Respondent is not making a legitimate noncommercial or fair use of the disputed domain name. The prima facie case presented by Complainant is sufficient to shift the burden of production to Respondent to demonstrate that Respondent has rights or legitimate interests in the disputed domain name. By failing to file a response, Respondent has not presented any evidence of any rights or legitimate interests Respondent may have in the disputed domain name.
Accordingly, the Panel finds that the requirements of paragraph 4(a)(ii) of the Policy have been met by Complainant.
D. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances that may evidence a respondent's bad faith registration and use:
(i) circumstances indicating that the respondent has registered or has 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 respondent's documented out-of-pocket costs directly related to the domain name; or
(ii) respondent has 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 respondent has engaged in a pattern of such conduct; or
(iii) Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, Internet users to respondent's 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 respondent's website or location or of a product or service on respondent's website or location.
The Panel finds that Complainant has demonstrated that Respondent registered and is using the disputed domain name in bad faith.
As an initial matter, Complainant has raised allegations that Respondent has registered the disputed domain name to run an illegal phishing scheme which is not affiliated with Complainant. In support of its allegation Complainant has appended a screenshot of Respondent's website, which was a near-duplication of Complainant's website. Respondent's website is shown containing similar layout, design, and graphics as Complainant's website, and features what appears to be Complainant's registered RIPPLE TRADE mark. Phishing includes of attracting customers of a financial company to a webpage that imitates the real page of the company, with a view to having customers disclose confidential information such as a credit card or bank account number, for the purpose of unlawfully charging such bank accounts or withdrawing money out of them. The Panel is satisfied that Respondent's one time redirection to Complainant's homepage, combined with the fact that Complainant is known as a payment processing company, creates an inference that Respondent has likely registered the disputed domain name, which is confusingly similar to the trademark of Complainant for a fraudulent purpose. See Zurich Insurance Company v. Shi Wang, WIPO Case No. D2005-0712.
Moreover, it appears that, Respondent has engaged in "typosquatting," by registering a common misspelling of RIPPLE TRADE. Typosquatting is considered "virtually per se registration and use in bad faith". See VMWARE, Inc. v. Above.com Domain Privacy, Above.com / Domain Admin, WIPO Case No. D2015-1449; Go Daddy Software, Inc. v. Daniel Hadani, WIPO Case No. D2002-0568. See also S.A.C.I. Falabella v. Hector Ramirez, WIPO Case No. DCO2015-0012 and cases cited therein. Typosquatting prevents a complainant's potential customers from finding that complainant's products, which could have the effect of disrupting the complainant's business. See, e.g., Neuberger Berman Inc. v. Alfred Jacobsen, WIPO Case No. D2000-0323. The Panel finds that Respondent was aware of Complainant and the RIPPLE Marks when it registered the disputed domain name. The Panel also finds that Respondent has used the disputed domain name to divert Internet users from Complainant's website by capitalizing on the public recognition of the RIPPLE Marks and that this constitutes bad faith use under the Policy.
Finally, on December 21, 2015, Complainant sent a cease and desist letter via certified electronic mail to the administrative contact of the disputed domain name demanding that Respondent discontinue its use of the disputed domain name and assign it to Complainant. The email was returned as undeliverable. The New York address provided by Respondent does not appear to be a legitimate address. Thus, it appears that Respondent has provided false contact information. Prior UDRP panel decisions show that false contact information is a further indication of bad faith registration and use under the Policy at paragraph 4(a)(iii). See BellSouth Intellectual Property Corporation v. Real Yellow Pages, WIPO Case No. D2003-0413.
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 <rippleltrade.com> be transferred to Complainant.
Date: June 1, 2016