WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ripple Labs, Inc. d/b/a Ripple v. Registration Private, Domains By Proxy, LLC / Jsons fackdes
Case No. D2016-0605
1. The Parties
Complainant is Ripple Labs, Inc. d/b/a Ripple of San Francisco, California, United States of America (“United States”), represented by Feldman Gale, P.A., United States.
Respondent is Registration Private, Domains By Proxy, LLC of Scottsdale, Arizona, United States / Jsons fackdes.
2. The Domain Name and Registrar
The disputed domain name <xrpclub.com> is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 29, 2016. On March 30, 2016, 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 disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on April 4, 2016, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on April 5, 2016.
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 Respondent of the Complaint, and the proceedings commenced on April 7, 2016. In accordance with the Rules, paragraph 5, the due date for Response was April 27, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on April 28, 2016.
The Center appointed Frederick M. Abbott as the sole panelist in this matter on May 9, 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 registration of the service mark XRP on the Principal Register of the United States Patent and Trademark Office (“USPTO”), registration number 4,458,993, registration dated December 31, 2013, in international class (IC) 36, covering “financial services, namely, providing secure payment options to members of an online community via a global computer network through the use of traditional currency and virtual currency”.1
The term XRP is used by Complainant to refer to a “math-based currency” or “cryptocurrency”, in addition to the term “ripple”. The currency conversion rates of XRPs or ripples, e.g., XRP/dollar, are quoted on various websites unassociated with Complainant. Complainant operates a commercial website at “www.ripple.com”, and owns various domain name registrations that incorporate its XRP service mark, including <xrpfundllc.com>.
According to the website operated by Complainant, its technology and cryptocurrency can be used to facilitate cross-currency payments and foreign-exchange transactions. Complainant’s website includes a subpage referred to as the “XRP Portal” describing the role of the XRP as follows:
“Welcome to the XRP Portal – the home for institutional investors and professional market makers to learn about XRP’s role in the Ripple network. XRP is the native digital asset to the Ripple network. While XRP is not required to transact on Ripple, it is uniquely positioned to create more competitive foreign exchange (FX) markets for cross-border payments.”
According to the Registrar’s verification, Respondent “Jsons fackdes” is the registrant of the disputed domain name. According to that verification the record of registration of the disputed domain name was created on December 18, 2015, and Respondent has been the registrant since at least March 30, 2016. There is no physical address provided in Respondent’s record of registration, and the other information appears to consist of arbitrary strings of letters and/or numbers. There is no indication that the privacy service provider listed as Respondent played a potentially problematic role in the registration and/or use of the disputed domain name, and the Panel does not address further the role of the privacy service provider (except that it is included within the scope of the Panel’s order, below, to transfer of the disputed domain name to the Complainant).
Complainant has provided substantial evidence that Respondent has used the disputed domain name to host a website that essentially replicates Complainant’s website. According to Complainant, Respondent has used the clone of Complainant’s website to engage in a phishing scheme in which Respondent fraudulently attempts to obtain Internet user phone numbers and passwords.
The registration agreement between Respondent and the Registrar subjects Respondent to dispute settlement under the Policy. The Policy requires that domain name registrants submit to a mandatory administrative proceeding conducted by an approved dispute resolution service provider, one of which is the Center, regarding allegations of abusive domain name registration and use (Policy, paragraph 4(a)).
5. Parties’ Contentions
Complainant contends that it is the owner of rights in the XRP service mark and that the disputed domain name is confusingly similar to that service mark.
Complainant contends that Respondent has no rights or legitimate interests in the disputed domain name because: (1) Respondent does not own any trademark or service mark registrations encompassing the disputed domain name or any variations thereof, and has not been commonly known by the disputed domain name; (2) Respondent is not making a legitimate noncommercial or fair use of the disputed domain name; (3) it is apparent that Respondent is attempting to misleadingly and unlawfully divert Internet users to Respondent’s website for commercial gain; (4) Respondent’s website does not contain any disclaimers of affiliation with Complainant.
Complainant argues that Respondent registered and is using the disputed domain name in bad faith because: (1) Respondent registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; (2) Respondent is intentionally for commercial gain redirecting Internet users to a website that competes with that of Complainant by creating a likelihood of confusion with respect to Complainant as the source, sponsor, affiliate or endorser of Respondent’s website; (3) Respondent’s website operated under the disputed domain name without Complainant’s consent makes use of the content on Complainant’s website, including Complainant’s format, logos, employee names and photographs, thereby seeking to confuse and take unfair advantage of Internet users.
Complainant requests the Panel to direct the Registrar to transfer the disputed domain name to Complainant.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
The Policy is addressed to resolving disputes concerning allegations of abusive domain name registration and use. The Panel will confine itself to making determinations necessary to resolve this administrative proceeding.
It is essential to Policy proceedings that fundamental due process requirements be met. Such requirements include that a respondent have notice of proceedings that may substantially affect its rights. The Policy and the Rules establish procedures intended to ensure that respondents are given adequate notice of proceedings commenced against them and a reasonable opportunity to respond (see, e.g., Rules, paragraph 2(a)).
The Center formally notified the Complaint to Respondent’s privacy service provider by email, fax and express courier. The Center attempted to notify Respondent Jsons fackdes by email at the address provided in the record of registration Respondent, and there was no physical address or fax number listed. The Center followed the procedures for notification established by the Rules. In light of Respondent Jsons fackdes’ provision of fictitious information in the record of registration, the Panel is satisfied that Respondent was afforded a reasonable opportunity to respond to the Complaint in this proceeding.
Paragraph 4(a) of the Policy sets forth three elements that must be established by Complainant to merit a finding that Respondent has engaged in abusive domain name registration and use and to obtain relief. These elements are that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) 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
Complainant has provided evidence of rights in the service mark XRP, including through registration at the USPTO and by use in commerce (see section 4, supra). Respondent has not challenged Complainant’s assertion of rights. The Panel determines that Complainant has rights in the service mark XRP.
The disputed domain name directly incorporates Complainant’s distinctive XRP service mark, adding the term “club” to that term. An Internet user viewing the disputed domain name directly incorporating Complainant’s distinctive mark would likely assume a commercial connection between the disputed domain name and Complainant. In the circumstances of this proceeding, Respondent’s use of the disputed domain name to direct Internet users to a website that is a clone of Complainant’s makes such confusion virtually inevitable. It was Respondent’s obvious intention to foster and take unfair advantage of such confusion. The Panel determines that the disputed domain name is confusingly similar to Complainant’s service mark.
The Panel determines that Complainant owns rights in the service mark XRP, and that the disputed domain name is confusingly similar to that service mark.
B. Rights or Legitimate Interests
The second element of a claim of abusive domain name registration and use is that Respondent has no rights or legitimate interests in respect of the disputed domain name (Policy, paragraph 4(a)(ii)). The Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests (“you” refers to the respondent):
“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.” (Policy, paragraph 4(c)).
Complainant’s allegations to support Respondent’s lack of rights or legitimate interests in the disputed domain name are outlined above in section 5A, and the Panel finds that Complainant has made a prima facie showing that Respondent lacks rights or legitimate interests in the disputed domain name.
Respondent has not presented evidence that might rebut the prima facie showing by Complainant.
The evidence before the Panel does not otherwise suggest rights or legitimate interests on the part of Respondent.
The Panel determines that Complainant has demonstrated that Respondent lacks rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
In order to prevail under the Policy, Complainant must demonstrate that the disputed domain name “has been registered and is being used in bad faith” (Policy, paragraph 4(a)(iii)). Paragraph 4(b) of the Policy states that “for the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith.” Among those circumstances are: “(iv) by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] web site or location or of a product or service on [the respondent’s] web site or location.”
Respondent registered the disputed domain name incorporating Complainant’s distinctive service mark for the purpose of attracting Internet users to Respondent’s website, which is a virtual clone of Complainant’s website. According to Complainant, Respondent has used its clone website for purposes of operating a phishing scheme. There is no plausible good faith explanation for Respondent’s use of the disputed domain name, and Respondent has not attempted to present such an explanation.
The Panel determines that Respondent is using the disputed domain name to attract for commercial gain Internet users to Respondent’s website by creating a likelihood of confusion as to Complainant acting as source, sponsor, affiliate or endorser of Respondent’s website.
The Panel determines that Respondent registered and is using the disputed domain name in bad faith within the meaning of paragraph 4(b)(iv) 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 <xrpclub.com> be transferred to Complainant.
Frederick M. Abbott
Date: May 16, 2016
1 Complainant changed its business name in 2014. It modified its service mark registration with the USPTO to show its current name.