OKEX Malta, Ltd. v. choong seng lee
Claim Number: FA2301002028046
Complainant is OKEX Malta, Ltd. (“Complainant”), represented by Sharoni Finkelstein of Venable LLP, California. Respondent is choong seng lee (“Respondent”), Malaysia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <okxusco.com>, registered with NameCheap, 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 Forum electronically on January 18, 2023; Forum received payment on January 18, 2023.
On January 18, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <okxusco.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 January 19, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 8, 2023 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@okxusco.com. Also on January 19, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On February 11, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant, OKEX Malta, Ltd., offers a cryptocurrency exchange platform.
Complainant has rights in the OKX mark through its registration of the mark with the European Union Intellectual Property Office (“EUIPO”) and otherwise.
Respondent’s <okxusco.com> domain name is virtually identical and confusingly similar to Complainant’s mark because it incorporates the OKX mark in its entirety and adds the abbreviations “us” and “co” and the “.com” generic top-level domain (“gTLD”).
Respondent has no legitimate interests in the <okxusco.com> domain name. Respondent is not commonly known by the at-issue domain name and Complainant has not authorized or licensed Respondent any rights in the OKX mark. Additionally, Respondent does not use the at-issue domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the resolving webpage also attempts to pass Respondent off as Complainant in furtherance of a phishing scheme.
Respondent registered and uses the <okxusco.com> domain name in bad faith. Respondent registered the at-issue domain name in order to take advantage of a likelihood of confusion with Complainant’s mark and divert customers for commercial gain. Respondent registered the domain name in order to participate in phishing. Finally, Respondent made use of a privacy service.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the OKX 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 OKX trademark.
Respondent uses the domain name to pass itself off as Respondent in furtherance of fraud.
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 confusingly similar to a mark in which Complainant has rights.
Complainant demonstrates rights in the OKX mark per Policy ¶ 4(a)(i) through its registration of such mark with the EUIPO, as well as through its other government trademark registrations worldwide. See Teleflex Incorporated v. Leisa Idalski, FA 1794131 (Forum July 31, 2018) (“Registration of a mark with governmental trademark agencies is sufficient to establish rights in that mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <okxusco.com> domain name is confusingly similar to Complainant’s OKX mark. The domain name contains Complainant’s entire trademark followed by the abbreviations “us” and “co” and with all followed by the “.com” top-level domain name. The differences between the at-issue <okxusco.com> domain name and Complainant’s OKX mark are insufficient to distinguish the domain name from Complainant’s mark for the purposes of the Policy. Therefore, the Panel finds that pursuant to Policy ¶ 4(a)(i) that Respondent’s <okxusco.com>domain name is confusingly similar to OKX. See Dollar Fin. Grp., Inc. v. Jewald & Assocs. Ltd., FA 96676 (Forum Apr. 6, 2001) (“The addition of ‘US’ or ‘USA’ does not alter the underlying mark held by the complainant.”); see also Bittrex, Inc. v. Sergey Valerievich Kireev / Kireev, FA 1784651 (Forum June 5, 2018) (holding that the domain name consists of the BITTREX mark and adds “the letters ‘btc’ and the gTLD .com which do not distinguish the Domain Name from Complainant’s mark.”).
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 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶4(c) circumstances Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue 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. See Charter Communications Holding Company, LLC v. Taha Shaikh / Tskdesigners, FA 1814475 (Forum Nov. 25, 2018) (finding no rights or legitimate interests in <spectrumfeature.com> because complainant never gave respondent permission to use the mark in any manner and “Panels may use these assertions as evidence that no rights or legitimate interests exist in a disputed domain name.”).
The WHOIS information for <okxusco.com> indicates that “choong seng lee” is the domain name’s registrant and there is nothing in the record before the Panel that tends to prove that Respondent is known by the <okxusco.com> domain name. As such, the Panel finds that Respondent is not commonly known by the at-issue domain name under Policy ¶ 4(c)(iii). 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).
Respondent uses the confusingly similar <okxusco.com> domain name to address a website that displays Complainant’s trademark and logo and is dressed to appear as if it is sponsored by Complainant when that in fact is not the case. Respondent’s use of <okxusco.com> to attempt to pass itself off as Complainant in this manner is not indicative of a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor of a non-commercial or fair use under Policy ¶4(c)(iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business).
Respondent has further used the at-issue domain name to facilitate a phishing scheme whereby Respondent’s <okxusco.com> website, disguised as Complainant’s genuine website, acts to mine personal financial information from <okxusco.com> website visitors who believe they are dealing with Complainant. Respondent’s phishing endeavor is also not indicative of a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor of a non-commercial or fair use under Policy ¶4(c)(iii). See Allianz of Am. Corp. v. Bond, FA 690796 (Forum June 12, 2006) (holding that the respondent’s use of the <allianzcorp.biz> domain name to fraudulently acquire the personal and financial information of Internet users seeking Complainant’s financial services was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and demonstrates Respondent’s lack of rights and lack of legitimate interests in respect of the at-issue domain name.
Respondent’s <okxusco.com> domain name was registered and used in bad faith. As discussed below without being exhaustive, bad faith circumstances are present that allow the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First, Respondent uses its confusingly similar domain name to pass itself off as Complainant and misdirect internet users seeking Complainant to Respondent’s <okxusco.com> website. There, the website displays Complainant’s logo and other indicia in a further effort to deceive internet users as to the sponsorship of the at-issue domain name and its associated website. Respondent’s use of the <okxusco.com> domain name to pass itself off as Complainant is disruptive to Complainant’s business and demonstrates Respondent’s bad faith registration and use of the at-issue domain name under both Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(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 at-issue 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); see also, Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also Carey Int’l, Inc. v. Kogan, FA 486191 (Forum July 29, 2005) (“[T]he Panel finds that Respondent is capitalizing on the confusing similarity of its domain names to benefit from the valuable goodwill that Complainant has established in its marks. Consequently, it is found that Respondent registered and used the domain names in bad faith under Policy ¶ 4(b)(iv).”).
Next, Respondent uses the confusingly similar domain name to phish for personal financial information. Respondent does so by inviting <okxusco.com> website visitors who believe they are dealing with Complainant to input such information via the website. Respondent’s phishing operation further shows Respondent’s bad faith under the Policy. See Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (“[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses that to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).”).
Moreover, Respondent registered the <okxusco.com>domain name knowing that Complainant had trademark rights in OKX. Respondent’s actual knowledge of Complainant’s rights in OKX is evident from the notoriety of Complainant’s trademark and from Respondent’s use of Complainant’s trademark and logo on its <okxusco.com> website. Respondent’s registration of <okxusco.com> while having knowledge of Complainant’s trademark rights in OKX further 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 the disputed domain name”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <okxusco.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: February 11, 2023
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