HDR Global Trading Limited v. A Si Di Fen Teng Ren
Claim Number: FA2112001975598
Complainant is HDR Global Trading Limited (“Complainant”), represented by Mary D. Hallerman of SNELL & WILMER L.L.P, District of Columbia, USA. Respondent is A Si Di Fen Teng Ren (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bitmex-apr.top>, registered with Web Commerce Communications Limited dba WebNic.cc.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 2, 2021; the Forum received payment on December 2, 2021.
On December 3, 2021, Web Commerce Communications Limited dba WebNic.cc confirmed by e-mail to the Forum that the <bitmex-apr.top> domain name is registered with Web Commerce Communications Limited dba WebNic.cc and that Respondent is the current registrant of the name. Web Commerce Communications Limited dba WebNic.cc has verified that Respondent is bound by the Web Commerce Communications Limited dba WebNic.cc 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 7, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 27, 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-apr.top. Also on December 7, 2021, 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 December 30, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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
Complainant states that it owns and operates a leading and prominent cryptocurrency-based virtual trading platform marketed to millions of consumers around the world in five languages. Complainant has been offering premier financial trading services in the field of digitized assets such as bitcoins, cryptocurrency, digital tokens, virtual currency and digital currencies since its inception in 2014. Today, Complainant’s business has grown to average between $1 billion and $5 billion of trading volume per day. With an annual trading volume of $1 trillion, Complainant is one of the largest trading platforms in the world, and it serves customers worldwide. Complainant has rights in the BITMEX mark based upon its registration of the mark with multiple trademark agencies around the world, including the European Union Intellectual Property Office in 2017. The mark is well known.
Complainant alleges that the disputed domain name is confusingly similar to its BITMEX mark as it incorporates the mark in its entirety and merely adds a hyphen, the generic term “apr” (which stands for the financial term “annual percentage rate”) and the “.top” generic top-level domain (“gTLD”).
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name as Respondent is not commonly known by the disputed domain name nor did Complainant authorize Respondent to use the BITMEX mark in any way. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent attempts to pass off as Complainant and confuse internet users into thinking they are interacting with Complainant.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith as Respondent attempts to pass off as Complainant and confuse internet users that Respondent is associated with Complainant. Respondent had actual knowledge of Complainant’s rights in the BITMEX mark due to the use and fame of the mark in commerce.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark BITMEX and uses it in connection with cryptocurrency services.
Complainant’s rights in its marks date back to at least 2017.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The disputed domain name is not being used.
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 disputed domain name incorporates Complainant’s BITMEX mark in its entirety and merely adds a hyphen, the generic term “apr” (which stands for the financial term “annual percentage rate”) and the “.top” generic top-level domain (“gTLD”). Registration of a domain name that contains a mark in its entirety and adds a generic term, a hyphen, and a gTLD does not distinguish the domain name from the mark per Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)), see also ADP, LLC. v. Ella Magal, FA 1773958 (Forum Aug. 2, 2017) (“Respondent’s <workforce-now.com> domain name appropriates the dominant portion of Complainant’s ADP WORKFORCE NOW mark and adds a hyphen and the gTLD “.com.” These changes do not sufficiently distinguish the disputed domain name from the ADP WORKFORCE NOW mark.”). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Here, the WHOIS information for the disputed domain name lists the registrant as “A Si Di Fen Teng Ren”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant alleges that Respondent uses the disputed domain name to impersonate Complainant in an attempt to derive illegitimate financial gain from unsuspecting consumers. However, it presents no evidence to that effect. As noted above, the Panel need not take into account allegations that are not supported by evidence. See also by analogy Chris Pearson v. Domain Admin / Automattic, Inc., FA 1613723 (Forum July 3, 2015) (finding that the complainant could not establish the respondent registered and used the disputed domain name in bad faith because it failed to present evidence that would support such a holding).
The evidence presented by Complainant shows that the disputed domain name does not resolve to an active website.
According to paragraph 4.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”), a Panel may conduct limited factual research regarding disputed domain names:
Noting in particular the general powers of a panel articulated inter alia in paragraphs 10 and 12 of the UDRP Rules, it has been accepted that a panel may undertake limited factual research into matters of public record if it would consider such information useful to assessing the case merits and reaching a decision.
This may include visiting the website linked to the disputed domain name in order to obtain more information about the respondent or its use of the domain name, consulting historical resources such as the Internet Archive (www.archive.org) in order to obtain an indication of how a domain name may have been used in the relevant past, reviewing dictionaries or encyclopedias (e.g., Wikipedia), or accessing trademark registration databases.
The Panel’s attempts to resolve the disputed domain name indicate that it does not resolve to a web site at present. A search in the Internet Archive indicates that the disputed domain name did not appear to be used in the past. There do not appear to be MX records for the disputed domain name, therefore it does not appear to be used for e-mail at present.
In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that disputed domain name is not being used.
Failure to make an active use of a domain name demonstrates that Respondent is not using the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial fair use. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”). Therefore, the Panel finds that Respondent is not using the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or 4(c)(iii). And the Panel finds that Respondent does not have rights or legitimate interests the in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the disputed domain name is not being used. According to paragraph 3.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Jurisprudential Overview 3.0): “From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or “coming soon” page) would not prevent a finding of bad faith under the doctrine of passive holding. While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put.”
In the present case, Complainant’s trademark is well known. It is difficult to envisage any use of the disputed domain name that would not violate the Policy, see Morgan Stanley v. TONY / shentony, FA 1637186 (Forum Oct. 10, 2015) (“Respondent registered the disputed domain name [MORGANSTANLEY.ONLINE] in bad faith because . . . it is difficult to envisage any use of the disputed domain name that would not violate the Policy”); see also Singapore Airlines Ltd. v. European Travel Network, D2000-0641 (WIPO Aug. 29, 2000) (where selection of disputed domain name is so obviously connected to complainant’s well-known trademark, use by someone with no connection with complainant suggests opportunistic bad faith); see also Starwood Hotels & Resorts Worldwide, Inc., Sheraton Int’l IP, LLC, Westin Hotel Mgmt., L.P. v. Jingjing Tang, D2014-1040 (WIPO Aug. 19, 2014) (“The Panel finds that the [WESTIN] Marks are not such that could legitimately be adopted by traders other than for the purpose of creating an impression of an association with Complainant. Thus, the Panel concludes that the disputed domain names were registered in bad faith”).
There has been no response to the Complaint and Respondent used a privacy service, that is, it attempted to conceal its identity. Given these circumstances, the Panel finds that, in this particular case, a finding of bad faith use can be inferred even though the disputed domain name is not being actively used. See Telstra Corporation Limited v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).
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-apr.top> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: December 31, 2021
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