HDR Global Trading Limited v. Pamela Ramirez / Crane Tech S. de R.L. de C.V
Claim Number: FA1902001829913
Complainant is HDR Global Trading Limited (“Complainant”), represented by J. Damon Ashcraft of SNELL & V/ILMER L.L.P., Arizona, USA. Respondent is Pamela Ramirez / Crane Tech S. de R.L. de C.V (“Respondent”), Mexico.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bitmex.land> (‘the Domain Name’), registered with GoDaddy.com, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 14, 2019; the Forum received payment on February 19, 2019.
On February 15, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <bitmex.land> 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 February 25, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 18, 2019 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@bitmex.land. Also on February 25, 2019, 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 March 20, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of the trademark BITMEX registered, inter alia, in the EU for financial services since 2017.
The Domain Name registered in 2018 is identical to the Complainant’s BITMEX mark adding only the gTLD “.land” which does not prevent the confusing similarity between the Domain Name and the Complainant’s mark.
The Domain Name has been pointed to the Complainant’s web site which is not a bona fide offering of goods or services or a legitimate noncommercial fair use. The Complainant has not authorized the Respondent’s use of the mark. The Respondent is not commonly known by the Domain Name. The Respondent does not have rights or a legitimate interest in the Domain Name.
The Domain Name has been registered and used in bad faith. Redirecting to the Complainant’s site makes a representation that the Domain Name is connected to the Complainant when it is not and takes advantage of the Complainant’s reputation and goodwill. The redirection shows the Respondent is aware of the Complainant and its business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the trademark BITMEX registered, inter alia, in the EU for financial services since 2017.
The Domain Name registered in 2018 has been pointed to the Complainant’s web site.
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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Identical or Confusingly Similar
The Domain Name consists of the Complainant’s BITMEX trademark and the gTLD .land.
A gTLD does not serve to distinguish a domain name from a Complainant’s mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is identical for the purpose of the Policy to a mark in which the Complainant has rights.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The Domain Name resolves to the Complainant’s site. There is no indication that there is no authorization from the Complainant for this connection to this commercial site suggesting the Domain Name is connected with the Complainant in a business context. The Panel finds this use is confusing. As such, it cannot amount to the bona fide offering of goods and services. It is also not noncommercial or fair use and the Respondent has not put forward any argument why it is legitimate. See Direct Line Ins. Plc. v. Low-cost-domain, FA 1337658 (Forum September 8, 2010) (pointing to Complainant’s own site is not a bona fide offering of goods or services or a legitimate noncommercial fair use).
As such, the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Respondent has not answered this Complaint or explained why it should be allowed to register a domain name containing the Complainant’s mark to point to the Complainant’s own web site.
In the opinion of the panelist, the use made of the Domain Name in relation to the site is confusing and disruptive in that visitors to the site might reasonably believe the Domain Name is connected to or approved by the Complainant as redirects to the Complainant’s own site. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract Internet users to material attached to its Domain Name by creating a likelihood of confusion with the Complainant's trademarks as to the source, sponsorship of the Domain Name likely to disrupt the business of the Complainant under Policy 4(b)(iii). See MySpace Inc. v. Gomez, D2007-1231 (WIPO Oct 17, 2007).
As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bitmex.land> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: March 22, 2019
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