Cboe Global Markets, Inc. and Eris Digital Holdings, LLC v. erisx / main
Claim Number: FA2210002017274
Complainant is Cboe Global Markets, Inc. and Eris Digital Holdings, LLC ("Complainant"), United States, represented by Kevin M. Bovard of Baker & Hostetler LLP, United States. Respondent is erisx / main ("Respondent"), Hong Kong.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <erisxep.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to Forum electronically on October 24, 2022; Forum received payment on October 24, 2022.
On October 25, 2022, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by email to Forum that the <erisxep.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 25, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 14, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@erisxep.com. Also on October 25, 2022, the Written Notice of the Complaint, notifying Respondent of the email 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, Forum transmitted to the parties a Notification of Respondent Default.
On November 16, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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, Cboe Global Markets, Inc. and its wholly owned subsidiary Eris Digital Holdings, LLC, provides exchange services for securities, derivatives, and digital assets. Complainant owns a family of ERISX and ERIS trademarks that it has used in connection with digital asset services since 2019 or earlier. In particular, Complainant owns trademark registrations for ERISX in standard character form in the United States, Hong Kong, China, Singapore, and many other jurisdictions.
Respondent registered the disputed domain name <erisxep.com> in October 2022. (Complainant states that the term "ep" is a shortened version of the descriptive financial term "economic profit.") The domain name is being used for a website that purports to be a cryptocurrency trading platform called "Erisx" or "Erisx Global Pro Station," headquartered in Singapore. Complainant states that it has been unable to find any evidence of a legitimate company using that name other than itself, and that most of the information in Respondent's domain name registration record is invalid. Complainant alleges that Respondent is attempting to impersonate Complainant for fraudulent purposes, likely to obtain information and money from Complainant's customers. Complainant states that Respondent is not commonly known by the disputed domain name and is not authorized or licensed to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <erisxep.com> is confusingly similar to its ERISX mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <erisxep.com> incorporates Complainant's registered ERISX trademark, adding the nondistinctive letters "ep" and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Eris Digital Holdings, LLC v. BitMex / Skye Lattin / Sammy Smart / Zey Hoven, FA 1989094 (Forum Apr. 27, 2022) (finding <erisxa.com> confusingly similar to ERISX); Cboe Exchange, Inc. v. main main / main, FA 2005791 (Forum Aug. 19, 2022) (finding <cboedep.com> confusingly similar to CBOE); Chicago Mercantile Exchange Inc., & CME Group Inc. v. Hai Liu, Chain; Haitao Liu; Ying Liu; Mingfang Liu; Haitao Du; Tao Hai; Hai Liu; Daoqi Zhu, Chain; & Zhu Daoqi, D2022-0274 (WIPO Mar. 22, 2022) (finding <cmegroupsep.com> confusingly similar to CME GROUP); Chevron Intellectual Property LLC v. Phillip Thomas / Chevron Pacific, FA 1615524 (Forum May 29, 2015) (finding <chevronpacificep.com> confusingly similar to CHEVRON). But see Cboe Exchange, Inc. v. main main / main, FA 2001707 (Forum Aug. 1, 2022) (declining to find confusing similarity between <cboeep.com> and CBOE, based on perception that repetition of the letter "e" produces a complete term in which the trademark is obfuscated). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and it is being used for a website that attempts to pass off as Complainant, either promoting competing services or (more likely in the Panel's view) supporting a fraudulent scheme of some sort. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Cboe Exchange, Inc. v. main main / main, FA 2005791, supra (finding lack of rights or interests in similar circumstances).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name incorporating Complainant's registered mark and is using it for a website that attempts to pass off as Complainant, either promoting competing services or supporting a fraudulent scheme of some sort. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Cboe Exchange, Inc. v. main main / main, FA 2005791, supra (finding bad faith registration and use in similar circumstances). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <erisxep.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: November 18, 2022
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