HDR Global Trading Limited v. bing zhang
Claim Number: FA2110001967978
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kingbitmex.com>, registered with GoDaddy.com, LLC.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 6, 2021; the Forum received payment on October 6, 2021.
On October 7, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <kingbitmex.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 October 8, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 28, 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@kingbitmex.com. Also on October 8, 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 November 2, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson 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 offers a cryptocurrency-based virtual trading platform. Complainant owns rights in the BITMEX mark through its registration of the mark with multiple trademark agencies around the world, including the European Union Intellectual Property Office (“EUIPO”) (e.g., Reg. No. 16,462,327, registered August 11, 2017). Respondent’s <kingbitmex.com> domain name is identical or confusingly similar to Complainant’s BITMEX mark, as it incorporates the mark in its entirety, only adding the generic term “king” and the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <kingbitmex.com> domain name. Complainant has not authorized or licensed Respondent to use the BITMEX mark, nor is Respondent commonly known by the disputed domain name. Further, Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services or legitimate noncommercial or fair use as the domain name resolves to an inactive website.
Respondent registered and uses the <kingbitmex.com> domain name in bad faith. Respondent uses the disputed domain name to resolve to an inactive website. Additionally, Respondent had actual notice of Complainant’s rights in the mark, evidenced by the notoriety and fame of Complainant’s mark. Respondent also failed to respond to Complainant’s cease-and-desist letter.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is HDR Global Trading Limited (“Complainant”), of Eden Island, Seychelles. Complainant is the owner of the registration for the mark BITMEX which it has continuously used since at least as early as 2017 in connection with its provision of financial services, computer software, currency exchange, and related goods and services.
Respondent is Bing Zhang (“Respondent”), of Hong Kong, China. Respondent’s registrar’s address is indicated as Scottsdale, AZ, USA. The Panel notes the <kingbitmex.com> domain name was registered on or about March 5, 2021.
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”).
Complainant asserts rights in the BITMEX mark through its registration of the mark with mutliple trademark agencies around the world, including the EUIPO (e.g., Reg. No. 16,462,327, registered August 11, 2017). Complainant also provides evidence of its registration of the mark with the European Union, China, and Korea, as well as an International Trademark. Registering a mark with multiple trademark agencies is sufficient to establish rights in a mark pursuant to Policy ¶ 4(a)(i). See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sept. 4, 2018) (“Complainant has rights in the GMAIL mark based upon its registration of the mark with numerous trademark agencies around the world.”); see also Bittrex, Inc. v. Domain Privacy Services, FA 1786849 (Forum June 15, 2018) (finding Complainant has trademark rights in the BITTREX mark through registration of the mark with the EUIPO and the USPTO.). The Panel here finds Complainant has sufficiently established rights in the mark per Policy ¶ 4(a)(i).
Complainant argues Respondent’s <kingbitmex.com> domain name is identical or confusingly similar to Complainant’s BITMEX mark, as it incorporates the mark in its entirety, only adding the generic term “king” and the “.com” gTLD. Simply adding a generic word and a gTLD is not sufficient to differentiate the disputed domain name from the mark. See MTD Products Inc v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”); see also Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II v. Svensson Viljae, FA 1784650 (Forum June 1, 2018) (finding confusing similarity where “[t]he disputed domain name <skechers-outlet.com> adds a hyphen and the generic term ‘outlet’ to Complainant's registered SKECHERS mark, and appends the ‘.com’ top-level domain.”). The Panel here finds the <kingbitmex.com> domain name is confusingly similar to Complainant’s BITMEX mark.
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
Rights or Legitimate Interests
The Panel notes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”). The Panel here finds Complainant has set forth the requisite prima facie case.
Complainant contends Respondent lacks rights and legitimate interests in the <kingbitmex.com> domain name because Respondent is not authorized to use the BITMEX mark, nor is Respondent commonly known by the disputed domain name. To determine whether a respondent is commonly known by the disputed domain name, the Panel may reference WHOIS information. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Furthermore, lack of authorization to use a mark serves as further indication that a respondent is not commonly known by the disputed domain name. See Radio Flyer Inc. v. er nong wu, FA 2011001919893 (Forum Dec. 16, 2020) (“Here, the WHOIS information lists “er nong wu” as the registrant and no information suggests Complainant has authorized Respondent to use the RADIO FLYER mark in any way. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”). In the instant case, the WHOIS information shows Respondent is known as “bing zhang” and there is no evidence offered to support a conclusion that Complainant authorized Respondent to use the BITMEX mark in any way. The Panel here finds Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant also argues Respondent does not use the <kingbitmex.com> domain name for a bona fide offering of goods and services or legitimate noncommercial or fair use because the resolving website is inactive. Past panels have agreed that holding a domain name to resolve to an inactive website is not a bona fide offering of goods and services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii). See Dell Inc. v. link growth / Digital Marketing, FA 1785283 (Forum June 7, 2018) (“Respondent’s domain names currently display template websites lacking any substantive content. The Panel finds that Respondent has does not have rights or legitimate interests with respect of the domain name per Policy ¶¶ 4(c)(i) or (iii).”); see also CrossFirst Bankshares, Inc. v. Yu-Hsien Huang, FA 1785415 (Forum June 6, 2018) (“Complainant demonstrates that Respondent fails to actively use the disputed domain name as it resolves to an inactive website. Therefore, the Panel finds that Respondent fails to actively use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).”). In the present case, Complainant provides a screenshot of the resolving website, showing it is inactive. The Panel here finds Respondent is not using the disputed domain name for a bona fide offering of goods and services or legitimate noncommercial or fair use.
Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).
The Complainant has proven this element.
Complainant contends Respondent registered and uses the <kingbitmex.com> domain name in bad faith, under Policy ¶ 4(a)(iii). The Panel may look beyond Policy ¶ 4(b) to the totality of the circumstances when making a determination of bad faith. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“[T]he examples [of bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive.”); see also CBS Broad., Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (finding that the criteria specified in 4(b) of the Policy is not an exhaustive list of bad faith evidence).
Complainant asserts Respondent acted in bad faith because the <kingbitmex.com> domain name resolves to an inactive website. Using a disputed domain name only to host an inactive website may evidence bad faith. See Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018) (“Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent uses the domain name to host an inactive website.”); see also CommScope, Inc. of North Carolina v. Zhuang Yan / WANGYONG, FA 1764026 (Forum Feb. 14, 2018) (“Respondent’s domain names do not have resolving websites. Using a domain name to resolve to an inactive website (or no website at all) indicates bad faith registration and use.”). The Panel here again notes Complainant provided evidence of the resolving website being inactive. The Panel here thus finds that Respondent acted in bad faith under Policy ¶ 4(a)(iii).
Complainant also contends that Respondent’s failure to respond to cease-and-desist letters evidences bad faith. Past panels have agreed that ignoring or not responding to a cease-and-desist letter may constitute bad faith. See Seiko Epson Corporation v. Ashish Sen, FA 1702054 (Forum Dec. 12, 2016) (finding that failing to respond to a cease-and-desist demand letter constitutes bad faith). In the present case, Complainant provides copies of the multiple cease-and-desist letters it sent to Respondent. The Panel here finds Respondent’s lack of response to the letters as further support Respondent acted in bad faith under Policy ¶ 4(a)(iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
DECISION
As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <kingbitmex.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: November 17, 2021
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