HDR Global Trading Limited v. norman nicholas
Claim Number: FA2303002035782
Complainant is HDR Global Trading Limited ("Complainant"), represented by Mary D. Hallerman of Snell & Wilmer L.L.P., Washington D.C., USA. Respondent is norman nicholas ("Respondent"), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bitmextrade.ltd>, registered with NameSilo, LLC.
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 March 14, 2023; Forum received payment on March 14, 2023.
On March 14, 2023, NameSilo, LLC confirmed by email to Forum that the <bitmextrade.ltd> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 March 15, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 4, 2023 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@bitmextrade.ltd. Also on March 15, 2023, 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 April 7, 2023, 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 owns and operates a cryptocurrency trading platform. Complainant states that it is one of the largest such platforms in the world, with an average trading volume of at least several hundred million dollars per day. Complainant has used the BITMEX mark since 2014 in connection with financial trading platform services. Complainant owns trademark registrations for BITMEX in standard character form in the European Union, China, and other jurisdictions, along with registrations for related design marks.
The disputed domain name <bitmextrade.ltd> was registered in January 2023. The name is registered in the name of a privacy registration service on behalf of Respondent. The domain name currently does not resolve to a website. Until recently, it was being used for a website displaying Complainant's BITMEX mark and offering or purporting to offer cryptocurrency trading services. Complainant states that Respondent is not commonly known by the domain name, is not sponsored or endorsed by Complainant, and is not authorized or licensed to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <bitmextrade.ltd> is confusingly similar to its BITMEX 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 <bitmextrade.ltd> incorporates Complainant's registered BITMEX trademark, adding the generic term "trade" and the ".ltd" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., HDR Global Trading Ltd. v. Andrew West, FA 1972546 (Forum Dec. 3, 2021) (finding <bitmexinvest.ltd> confusingly similar to BITMEX); HDR Global Trading Ltd. v. Henry Liam, FA 1968201 (Forum Nov. 8, 2021) (finding <bitmextrade.com> confusingly similar to BITMEX). 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 its sole apparent use has been for a website that used Complainant’s mark to promote competing services and possibly to defraud users. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., HDR Global Trading Ltd. v. Andrew West, supra (finding lack of rights or interests in similar circumstances); HDR Global Trading Ltd. v. Henry Liam, supra (same).
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 used a privacy registration service to register a domain name incorporating Complainant's mark. The only apparent use of the domain name has been for a website that used Complainant’s mark to promote competing services and possibly to defraud users. Respondent does not appear to be making any active use of the domain name at present, and has failed to come forward with any explanation for the selection or use of the name. Such circumstances are indicative of bad faith registration and use under the Policy. See, e.g., HDR Global Trading Ltd. v. Andrew West, supra (finding bad faith registration and use in similar circumstances); HDR Global Trading Ltd. v. Henry Liam, supra (same). 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 <bitmextrade.ltd> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: April 10, 2023
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