HDR Global Trading Limited v. XuSiYin
Claim Number: FA2208002007562
Complainant is HDR Global Trading Limited (“Complainant”), represented by Mary D. Hallerman of SNELL & WILMER L.L.P, US. Respondent is XuSiYin (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bitmexdao.com>, registered with Xin Net Technology Corporation.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 8, 2022. The Forum received payment on August 8, 2022. The Complaint was received in both Chinese and English.
On Aug 12, 2022, Xin Net Technology Corporation confirmed by e-mail to the Forum that the <bitmexdao.com> domain name is registered with Xin Net Technology Corporation and that Respondent is the current registrant of the name. Xin Net Technology Corporation has verified that Respondent is bound by the Xin Net Technology Corporation registration agreement, which is in Chinese, 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 August 19, 2022, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of September 8, 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@bitmexdao.com. Also on August 19, 2022, the Chinese language 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 September 15, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDINGS
As noted, the Xin Net Technology Corporation registration agreement is in Chinese. Pursuant to Rule 11(a), the language of the proceeding in relation to the <bitmexdao.com> domain name shall be Chinese unless otherwise determined by the Panel, having regard to the circumstances of the proceeding.
The <bitmexdao.com> domain name resolves to an English language website offering the domain name for sale in US dollars. In the absence of any Response, these circumstances satisfy the Panel that Respondent is likely to be proficient in English and that there would be no undue prejudice to Respondent if English were the language of the proceeding.
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
A. Complainant
Complainant owns and operates a prominent cryptocurrency trading platform marketed to millions of consumers around the world in six languages. Complainant has been offering premier financial trading services in the field of digitized assets and cryptocurrencies since its inception in 2014. Today, Complainant’s business currently averages several hundreds of millions to a billion dollars or more of trading volume per day. Complainant is one of the largest cryptocurrency trading platforms in the world, servicing customers all over the world.
Through its wholly owned subsidiary HDR SG PTE. LTD., Complainant owns the distinctive and well-known trademark BITMEX through registrations with various trademark agencies including the European Union Office of Harmonisation in the Internal Market (“OHIM”). Respondent’s <bitmexdao.com> domain name is identical or confusingly similar to Complainant’s BITMEX mark.
Respondent lacks rights and legitimate interests in the <bitmexdao.com> domain name. Respondent is not commonly known by the domain name, nor has Complainant authorized or licensed Respondent to use its BITMEX mark in the domain name. Respondent does not use the domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use. Instead it resolves to a “for sale” webpage seeking $50,000 USD for the domain name. See, e.g., HDR Global Trading Limited v. Milen Radumilo, FA1908001859583 (Forum Oct. 4, 2021) (“Where a respondent’s only use of a disputed domain name is to solicit offers to purchase the domain name, this indicates that the respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).”); HDR Global Trading Limited v. Mudassar Munir, FA2005001895547 (Forum June 10, 2020) (“The Panel notes that Respondent’s offer for sale of the Disputed Domain Name to Complainant does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under paragraph 4(c)(i) and (iii) of the Policy.”).
Respondent registered the <bitmexdao.com> domain name in bad faith with actual knowledge of Complainant’s rights in the BITMEX mark and uses it in bad faith by offering the domain name for sale while capitalizing on the goodwill associated with Complainant’s mark and creating confusion as to the source of the webpage. Additionally, Respondent failed to respond to Complainant’s cease-and-desist letters and used a privacy service to hide its identity.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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 has shown that, through its wholly owned subsidiary HDR SG PTE. LTD., it has rights in the BITMEX mark through registrations including with the OHIM, e.g. Reg. No. 16,462,327, registered Aug. 11, 2017. The Panel finds Respondent’s <bitmexdao.com> domain name to be confusingly similar to Complainant’s BITMEX mark as it incorporates the mark in its entirety while adding the letters “dao”, which do nothing to distinguish the domain name from the mark, and the inconsequential “.com” generic top-level domain (“gTLD”), which may be ignored.
Complainant has established this element.
(i) before any notice to Respondent of the dispute, the use by Respondent 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) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <bitmexdao.com> domain name was registered on January 8, 2022, long after Complainant has shown that its BITMEX mark had become famous worldwide. On July 21, 2022, it resolved to a “for sale” webpage seeking $50,000 USD for the domain name.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <bitmexdao.com> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019).
Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
The four illustrative circumstances set out in paragraph 4(b) of the Policy as evidence of the registration and use of a domain name in bad faith for purposes of paragraph 4(a)(iii) are not exclusive.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainants’ famous BITMEX mark when Respondent registered the <bitmexdao.com> domain name and that Respondent registered the domain name in bad faith. See HDR Global Trading Limited v. Garreth Griggs, FA2004001890660 (FORUM April 28, 2020) (“Registering and using a confusingly similar domain name with knowledge of Complainant’s rights in such domain name in itself shows bad faith registration and use pursuant to Policy ¶4(a)(iii).”).
Further, under the circumstances of this case, “it is not possible to conceive of any plausible actual or contemplated active use of the domain name by the Respondent that would not be illegitimate[.]” Telstra Corp. Ltd. v. Nuclear Marshmallows, Case No. D2000-0003 (WIPO Feb. 18, 2000) (finding bad faith use).
Accordingly, the Panel finds that Respondent registered and is using the <bitmexdao.com> domain name in bad faith.
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bitmexdao.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: September 15, 2022.
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