HDR Global Trading Limited v. Admin Code-mining
Claim Number: FA2112001977728
Complainant is HDR Global Trading Limited (“Complainant”), represented by Mary D. Hallerman of SNELL & WILMER L.L.P, District of Columbia, USA. Respondent is Admin Code-mining (“Respondent”), Switzerland.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bitmextradeoption.com>, registered with OwnRegistrar, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 20, 2021; the Forum received payment on December 20, 2021.
On December 28, 2021, OwnRegistrar, Inc. confirmed by e-mail to the Forum that the <bitmextradeoption.com> domain name is registered with OwnRegistrar, Inc. and that Respondent is the current registrant of the name. OwnRegistrar, Inc. has verified that Respondent is bound by the OwnRegistrar, 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 December 29, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 18, 2022 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@bitmextradeoption.com. Also on December 29, 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 January 23, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant is an online cryptocurrency exchange provider.
Complainant has rights in the BITMEX mark through its registrations with various trademark agencies throughout the world (e.g. World Intellectual Property Office (“WIPO”); European Union Intellectual Property Office (“EUIPO”); United States Patent and Trademark Office (“USPTO”).
Respondent’s <bitmextradeoption.com> domain name is identical or confusingly similar to Complainant’s mark as it incorporates the mark in its entirety and adds the words “trade option” along with the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <bitmextradeoption.com> domain name. Respondent is not commonly known by the at-issue domain name, nor has Complainant authorized or licensed Respondent to use its BITMEX mark in the domain name. Respondent does not use the at-issue domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead passes itself off as Complainant on the at-issue domain name’s website.
Respondent registered and uses the <bitmextradeoption.com> domain name in bad faith. Respondent disrupts Complainant’s business for commercial gain by passing off as Complainant on the domain name’s website. Respondent registered the at-issue domain name with actual knowledge of Complainant’s rights in the BITMEX mark. Respondent uses the domain name and its website to perpetrate fraud upon third parties.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the BITMEX mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the BITMEX trademark.
Respondent uses the at-issue domain name to pass itself off as Complainant and address a website that purportedly offers services similar to those offered by Complainant. Respondent thus attempts to swindle duped website visitors into paying for Respondent’s alleged services.
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 at-issue domain name is identical to a trademark in which Complainant has rights.
Complainant’s USPTO trademark registration for BITMEX, as well as any of its other trademark registrations for such mark worldwide, is conclusive evidence of Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Alibaba Group Holding Limited v. YINGFENG WANG, FA 1568531 (Forum Aug. 21, 2014) (“Complainant has rights in the ALIBABA mark under the Policy through registration with trademark authorities in numerous countries around the world.”); see also, 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.”).
Respondent’s <bitmextradeoption.com> domain name contains Complainant’s BITMEX trademark followed by the terms “trade” and “option.” Respondent’s domain name concludes with a compulsory top-level domain name, here “.com.” The differences between Complainant’s BITMEX trademark and Respondent’s <bitmextradeoption.com> domain name fail to distinguish the domain name from the Complainant’s mark. Accordingly, the Panel finds that Respondent’s <bitmextradeoption.com> domain name is confusingly similar to Complainant’s BITMEX trademark under Policy ¶ 4(a)(i). See Empowered Medical Solutions, Inc. d/b/a QRS-Direct and QRS Magnovit AG v. NULL NULL / QUANTRON RESONANCE SYSTEMS / JIM ANDERSON / HTR / unknown HTR / HTR, FA 1784937 (Forum June 8, 2018) (“Adding or removing descriptive terms or a gTLD is insufficient to differentiate a disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i).”).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the <bitmextradeoption.com> domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name identifies the registrant of <bitmextradeoption.com> as “Admin Code-Mining” and the record before the Panel contains no evidence that otherwise tends to show that Respondent is commonly known by the <bitmextradeoption.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Moreover, Respondent uses the confusingly similar <bitmextradeoption.com> domain name to address a website designed to appear as if it is a genuine website authorized by Complainant. Respondent’s bogus website prominently displays Complainant’s trademark and logo and purportedly offers services that compete with Complainant. The website’s banner is entitled “Bitmex” and uses a blue and red color scheme and dark background similar to Complainant’s official website. The website further provides information concerned with cryptocurrency trading. Respondent’s use of the at-issue domain name in this manner to pass itself off as Complainant and offer competing services constitutes neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a non-commercial or fair use under Policy ¶ 4(c)(iii). See iFinex Inc. v. Yuri Hefetz / Genie-Solution, FA 1789385 (Forum July 9, 2018) (holding that the respondent’s mimicking the complainant’s website in order to cause existing or potential customers to falsely believe they are setting up a new account with the complainant is prima facie evidence of the respondent’s lack of rights and legitimate interests in the disputed domain name); see also, Invesco Ltd. v. Premanshu Rana, FA 1733167 (Forum July 10, 2017) (“Use of a domain name to divert Internet users to a competing website is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there is sufficient evidence from which the Panel may conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
As discussed above regarding rights and interests, Respondent uses the at-issue domain name and its website to pass itself off as Complainant and offer products similar to those offered by Complainant. Respondent’s actions show Respondent’s bad faith under Policy ¶¶ 4(b)(iii) and (iv). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding bad faith per Policy ¶¶ 4(b)(iii) and (iv) where the respondent used the disputed domain name to resolve to a website upon which the respondent passes off as the complainant and offers online cryptocurrency services in direct competition with the complainant’s business).
Additionally, Respondent had actual knowledge of Complainant’s rights in the BITMEX mark when it registered <bitmextradeoption.com> as a domain name. Respondent’s actual knowledge is evident given the notoriety of Complainant’s BITMEX trademark and from Respondent’s use of the domain name to pass itself off as Complainant as further discussed elsewhere herein. Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s trademark rights in such domain name also indicates Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); 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).
Moreover, Complainant suggests that Respondent’s is intent on using the confusingly similar at-issue domain name to fraudulently extract cryptocurrency from website visitors. Respondent’s use of <bitmextradeoption.com> to perpetrate fraud additionally demonstrates Respondent’s bad faith registration and use of the <bitmextradeoption.com> domain name. See HDR Global Trading Limited v. Host Master / 1337 Services LLC, FA1908001859298 (Forum Sept. 19, 2019) (finding bad faith where website visitors “were duped into giving up valuable cryptocurrency to Respondent”); see also, Juno Online Servs., Inc. v. Nelson, FA 241972 (Forum Mar. 29, 2004) (“The domain name <billing-juno.com> was registered and used in bad faith by using the name for fraudulent purposes.”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bitmextradeoption.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: January 24, 2022
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