HDR Global Trading Limited v. Anton Y Chalov
Claim Number: FA2011001923294
Complainant is HDR Global Trading Limited (“Complainant”), represented by David G. Barker of SNELL & WILMER L.L.P, Arizona, USA. Respondent is Anton Y Chalov (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bitmex-giveaway.com> (“Domain Name”), registered with Beget 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.
Nicholas J.T. Smith as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 30, 2020; the Forum received payment on November 30, 2020. The Complaint was submitted in both Russian and English.
On December 3, 2020, Beget LLC confirmed by e-mail to the Forum that the <bitmex-giveaway.com> domain name is registered with Beget LLC and that Respondent is the current registrant of the name. Beget LLC has verified that Respondent is bound by the Beget 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 December 14, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 4, 2021 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-giveaway.com. Also on December 14, 2020, 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 January 6, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Nicholas J.T. Smith 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.
The language of the Registration Agreement in this case is Russian. The Complaint has been provided in English and Russian.
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Russian language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English as to continue this proceeding in English would not materially result in prejudice to Respondent. See TRIA Beauty, Inc. v. Xu Bao Rong c/o Xu Bao, FA 1336978 (Forum Aug. 30, 2010).
A. Complainant
Complainant, HDR Global Trading Limited, owns and operates a cryptocurrency-based virtual trading platform, which was co-founded by Arthur Hayes. Complainant has rights in the BITMEX mark based upon the registration with multiple trademark organizations, including the European Union Intellectual Property Office (“EUIPO”) (e.g., Reg. No. 16,462,327, registered August 11, 2017). Respondent’s <bitmex-giveaway.com> domain name is virtually identical and confusingly similar to Complainant’s BITMEX mark because it contains the mark in its entirety, merely adding the generic term “giveaway” and the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <bitmex-giveaway.com> domain name because Complainant has not licensed or authorized Respondent to use the BITMEX mark and Respondent is not commonly known by the Domain Name. Additionally, Respondent does not use the Domain Name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent previously used the Domain Name in connection with fraud and the Domain Name now resolves to an inactive webpage.
Respondent registered and uses the <bitmex-giveaway.com> domain name in bad faith. Respondent capitalizes on the goodwill associated with Complainant’s mark for commercial gain through an advance fee fraud scheme. Additionally, Respondent had actual knowledge of Complainant’s rights in the BITMEX mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the BITMEX mark. The Domain Name is confusingly similar to Complainant’s BITMEX mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the Domain Name and that Respondent registered and has used the Domain Name 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 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 rights in the BITMEX mark through its registration with multiple trademark organizations, including the EUIPO (e.g., Reg. No. 16,462,327, registered August 11, 2017). Registration of a mark with the EUIPO is sufficient to establish rights in that mark. See Sanlam Life Insurance Limited v. Syed Hussain / Domain Management MIC, FA 1787219 (Forum June 15, 2018) (“Registration of a mark with the EUIPO, a government agency, sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i).”).
The Panel finds that the <bitmex-giveaway.com> domain name is confusing similar to Complainant’s BITMEX mark as it wholly incorporates the BITMEX mark and then adds the generic word “-giveaway” and a “.com” gTLD. Addition of generic or descriptive words and a gTLD does not sufficiently distinguish a domain name from a mark under Policy ¶ 4(a)(i). See Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) (“Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the DELL mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i)”).
Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Name. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”). The Panel holds that Complainant has made out a prima facie case.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name as Respondent is not commonly known by the Domain Name, nor has Complainant authorized Respondent to use the BITMEX mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). The WHOIS lists “Anton Y Chalov” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).
The Domain Name is presently inactive which by itself does not show a bona fide offering of goods and services. Complainant alleges, and provides evidence supporting its allegations, that prior to the commencement of the proceeding the Domain Name was used to create website that purported to be an official website of the Complainant and featured the name and image of Arthur Hayes, Complainant’s co-founder. The website appears to be in the service of an advance fee fraud scheme, whereby visitors to the website were invited to provide bitcoins to the Respondent on the promise (undoubtedly false) that their payment would be doubled. This is a textbook example of fraud. Respondent’s use of the Domain Name to impersonate Complainant for the purpose of engaging in fraud is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Juno Online Servs., Inc. v. Nelson, FA 241972 (Forum Mar. 29, 2004) (finding that using a domain name in a fraudulent scheme to deceive Internet users into providing their credit card and personal information is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds on the balance of probabilities that at the time Respondent registered the Domain Name, April 19, 2020, Respondent had actual knowledge of Complainant’s BITMEX mark. The website to which the Domain Name had resolved makes reference to Complainant and its co-founder Arthur Hayes and indeed purports to be a website operated by Complainant. In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and uses the Domain Name in bad faith as Respondent uses or has used the Domain Name to impersonate Complainant to engage in an advance fee fraud scheme. Use of a disputed domain name to impersonate a complainant in furtherance of a fraud is evidence of bad faith per Policy ¶ 4(a)(iii). See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1506001622862 (Forum Aug. 10, 2015) (finding that the respondent’s apparent use of the disputed domain name in furtherance of a ‘phishing’ scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)); see also Juno Online Servs., Inc. v. Nelson, FA 241972 (Forum Mar. 29, 2004) (“The domain name <billing-juno.com> was registered and used in bad faith by using the name for fraudulent purposes.”). Accordingly, the Panel finds that Respondent registered and uses the Domain Name in bad faith pursuant to Policy ¶ 4(b)(iii).
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-giveaway.com> domain name be TRANSFERRED from Respondent to Complainant.
Nicholas J.T. Smith, Panelist
Dated: January 11, 2021
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