HDR Global Trading Limited v. Ifeanyi Ifeskilz
Claim Number: FA2106001949455
Complainant is HDR Global Trading Limited (“Complainant”), represented by Anne M. Bolamperti of SNELL & WILMER L.L.P, Arizona, USA. Respondent is Ifeanyi Ifeskilz (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bitmexfx.com>, registered with FastDomain Inc..
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 2, 2021; the Forum received payment on June 2, 2021.
On June 2, 2021, FastDomain Inc. confirmed by e-mail to the Forum that the <bitmexfx.com> domain name is registered with FastDomain Inc. and that Respondent is the current registrant of the name. FastDomain Inc. has verified that Respondent is bound by the FastDomain Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On June 4, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 24, 2021 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@bitmexfx.com. Also on June 4, 2021, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On June 29, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that owns and operates a leading and prominent cryptocurrency-based virtual trading platform marketed to millions of consumers around the world in five languages. Complainant has been offering premier financial trading services in the field of digitized assets such as bitcoins, cryptocurrency, digital tokens, virtual currency and digital currencies since its inception in 2014. Today, Complainant’s business has grown to average between $1 billion and $5 billion of trading volume per day. With an annual trading volume of $1 trillion, Complainant is one of the largest trading platforms in the world, and it serves customers all over the world. Complainant has rights in the BITMEX mark based on its registration of the mark in the European Union in 2017.
Complainant alleges that the disputed domain name is confusingly similar to its BITMEX mark since it fully incorporates the mark and merely adds the letters “fx” (a common abbreviation for foreign exchange) and the “.com” generic top level domain (“gTLD”).
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain name as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the BITMEX mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to host a website that, at different times, was either inactive, or offering goods and services unrelated to Complainant’s business, or that compete with Complainant’s business.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent uses the disputed domain name to host a website that, at different times, was either inactive, or offering goods and services unrelated to Complainant’s business, or that compete with Complainant’s business. Furthermore, Respondent had actual knowledge of Complainant’s rights in the BITMEX mark based on Respondent’s use of Complainant’s BITMEX mark in the resolving website along with information on cryptocurrency trading related to Complainant’s business. Lastly, Respondent’s bad faith is manifested in Respondent’s failure to respond to Complainant’s cease-and-desist notices.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark BITMEX and uses it to operate a cryptocurrency-based virtual trading platform.
Complainant’s rights in its marks date back to at least 2017.
The disputed domain name was registered in 2020.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolved, at different times, to a website that was either inactive or offered advertising and/or goods and services that either are unrelated to or compete with Complainant’s business. At one time, the resolving website displayed Complainant’s mark and information related to cryptocurrency trading.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The disputed domain name fully incorporates Complainant’s BITMEX mark and merely adds the letters “fx” (a common abbreviation of foreign exchange) and the “.com” gTLD. This is not sufficient to avoid a finding of confusing similarity under the Policy. See Oki Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001) (“[T]he fact that a domain name wholly incorporates a Complainant’s registered mark is sufficient to establish identity [sic] or confusing similarity for purposes of the Policy despite the addition of other words to such marks”); see also Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) (“The domain name contains the mark in its entirety, with only the addition of the generic letters ‘sb’ and the digits ‘2018,’ plus the generic Top Level Domain (“gTLD”) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: when no response is submitted, WHOIS information can be used to show that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS information identifies “Ifeanyi Ifeskilz” as the registrant. Thus, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The disputed domain name resolved, at different times, to a website that was either inactive or offered advertising and/or goods and services that either are unrelated to or compete with Complainant’s business. Specifically, Complainant provides evidence showing that at present the disputed domain name resolves to an inactive site. Previously, the resolving website displayed a web search box along with a list of search subjects and click-through advertising links unrelated to Complainant’s business, such as “real estate” and “cheap airfare”. At another time, the resolving website featured information related to cryptocurrency trading, which is Complainant’s business. Inactive holding and offering of advertising or goods and services that are either unrelated to or competing with Complainant’s goods and services have been held to not constitute a bona fide offering of goods or services or legitimate noncommercial or fair use. See Activision Blizzard, Inc. / Activision Publishing, Inc. / Blizzard Entertainment, Inc. v. Cimpress Schweiz GmbH, FA 1737429 (Forum Aug. 3, 2017) (“Complainant insists that Respondent has made no demonstrable preparations to use the disputed domain name. When Respondent is not using the disputed domain name in connection with an active website, the Panel may find that Respondent is not using the disputed domain name for a bona fide offering of goods or services… As Respondent has not provided a response to this action, Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.”); see also Golden Bear Int’l, Inc. v. Kangdeock-ho, FA 190644 (Forum Oct. 17, 2003) (“Respondent's use of a domain name confusingly similar to Complainant’s mark to divert Internet users to websites unrelated to Complainant's business does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see additionally Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). Thus, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving website, at different times, offered advertising for unrelated or competing goods and services. Use of a disputed domain name to offer advertising and/or goods or services, whether competing or unrelated, can be evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and/or an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii).”); see also Tumblr, Inc. v. Ailing Liu, FA1402001543807 (Forum Mar. 24, 2014) (“Bad faith use and registration exists under Policy ¶ 4(b)(iv) where a respondent uses a confusingly similar domain name to resolve to a website featuring links and advertisements unrelated to complainant’s business and respondent is likely collecting fees.”). Thus, the Panel finds bad faith registration and use under Policy ¶¶ 4(b)(iii) and/or (iv).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: at one time, the resolving website displayed Complainants’ mark and information on cryptocurrency trading, which is Complainant’s business. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bitmexfx.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 29, 2021
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