HDR Global Trading Limited v. Petr Sralevich, PETR INTER
Claim Number: FA2202001985021
Complainant is HDR Global Trading Limited (“Complainant”), represented by Mary D. Hallerman of SNELL & WILMER L.L.P, District of Columbia, USA. Respondent is Petr Sralevich, PETR INTER (“Respondent”), Louisiana, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bitmexio.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.
Ho-Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 18, 2022; the Forum received payment on February 18, 2022.
On February 19, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <bitmexio.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 February 21, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 14, 2022 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@bitmexio.com. Also on February 21, 2022, 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 March 20, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho-Hyun Nahm, Esq. 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
i) Complainant is a cryptocurrency exchange. Complainant has rights in the BITMEX mark through its registrations with various trademark agencies throughout the world (e.g., World Intellectual Property Organization (“WIPO”) Reg. 1,514,704, registered Oct. 10, 2019; European Union Intellectual Property Office (“EUIPO”) Reg. 16,462,327, registered Aug. 11, 2017). The disputed domain name is identical or confusingly similar to Complainant’s BITMEX mark as it incorporates the mark in its entirety and adds the letters “io” and the “.com” generic top-level domain (“gTLD”).
ii) Respondent lacks rights and legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its BITMEX mark in the disputed domain name. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead passed off as Complainant, and now inactively holding its resolving website.
iii) Respondent registered and uses the disputed domain name in bad faith. Respondent passed off as Complainant. Respondent inactively holds the disputed domain name’s resolving website. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the BITMEX mark. Respondent failed to respond to Complainant’s cease-and-desist letters.
B. Respondent
Respondent did not submit a response in this proceeding.
1. The disputed domain name was registered on July 4, 2021.
2. Complainant has rights in the BITMEX mark through its registrations with various trademark agencies throughout the world (e.g., World Intellectual Property Organization (“WIPO”) Reg. 1,514,704, registered Oct. 10, 2019; European Union Intellectual Property Office (“EUIPO”) Reg. 16,462,327, registered Aug. 11, 2017).
3. The disputed domain name was previously resolved to a website, which offered cryptocurrency services.
4. The disputed domain name’s resolving website currently contains no substantive content.
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 claims rights in the BITMEX mark through its registrations with various trademark agencies throughout the world (e.g., WIPO Reg. 1,514,704, registered Oct. 10, 2019; EUIPO Reg. 16,462,327, registered Aug. 11, 2017). Registration with multiple trademark agencies is generally sufficient in establishing rights in a mark under Policy ¶ 4(a)(i). See Red Hat, Inc. v. Muhammad Shahzad, FA 1787738 (Forum June 19, 2018) (“Registration of a mark with multiple trademark agencies is sufficient to demonstrate rights to a mark per Policy ¶ 4(a)(i).”). Therefore, the Panel finds Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that the disputed domain name <bitmexio.com> is identical or confusingly similar to the BITMEX mark. Under Policy ¶ 4(a)(i), adding letters and the “.com” may be insufficient in differentiating a disputed domain name from the mark it incorporates. See Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) (“The domain name contains the mark in its entirety, with only the addition of the generic letters ‘sb’ and the digits ‘2018,’ plus the generic top-level domain (“gTLD”) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”). The disputed domain name incorporates the BITMEX mark in its entirety and adds the letters “io”, along with the “.com” gTLD. Therefore, the Panel finds the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Complainant argues that Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its BITMEX mark in the disputed domain name. Under Policy ¶ 4(c)(ii), where a response is lacking, relevant WHOIS Information may demonstrate that a Respondent is not commonly known by a disputed domain name, while a lack of evidence demonstrating otherwise may affirm a Complainant’s assertion that it never authorized or licensed Respondent to use its mark in the disputed domain name. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). The WHOIS of record identifies Respondent as “Petr Sralevich”, and nothing in the record rebuts Complainant’s assertion that it never authorized or licensed Respondent to use its BITMEX mark in the disputed domain name. The Panel therefore finds Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant argues that Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use. Under Policy ¶¶ 4(c)(i) and (iii), inactively holding a disputed domain name’s resolving website is generally not considered a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Dell Inc. v. link growth / Digital Marketing, FA 1785283 (Forum June 7, 2018) (“Respondent’s domain names currently display template websites lacking any substantive content. The Panel finds that Respondent has does not have rights or legitimate interests with respect of the domain name per Policy ¶¶ 4(c)(i) or (iii).”). The disputed domain name’s resolving website currently contains no substantive content. Therefore, the Panel finds Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
Complainant further argues that Respondent did not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use. Under Policy ¶¶ 4(c)(i) and (iii), using a disputed domain name to pass off as a Complainant is not considered a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See iFinex Inc. v. Yuri Hefetz / Genie-Solution, FA 1789385 (Forum July 9, 2018) (holding that the respondent’s mimicking the complainant’s website in order to cause existing or potential customers to falsely believe they are setting up a new account with the complainant is prima facie evidence of the respondent’s lack of rights and legitimate interests in the disputed domain name). Complainant provides screenshots of the disputed domain name’s previous resolving website, which offered cryptocurrency services. The Panel finds Respondent did not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant argues that Respondent registered and uses the disputed domain name in bad faith. Under Policy ¶ 4(b)(iv), using a disputed domain name to pass off as a Complainant and offer competing services may be evidence of bad faith registration and use. 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 disputed 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). The Panel recalls Complainant’s screenshots of the disputed domain name’s previous resolving website, which offered cryptocurrency services. Therefore, the Panel finds Respondent registered and used the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Complainant further argues that Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the BITMEX mark. The Panel notes that Complainant’s screenshots of the disputed domain name’s previous resolving website, which featured competing services and Complainant’s mark. The Panel infers, due to the notoriety of Complainant’s mark and the manner of use of the disputed domain name that Respondent registered the disputed domain name with bad faith actual knowledge of Complainant’s rights in the mark under Policy ¶ 4(a)(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 <bitmexio.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho-Hyun Nahm, Esq., Panelist
Dated: March 22, 2022
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