HDR Global Trading Limited v. Shawn Wilderom / CCCTrader
Claim Number: FA2204001992112
Complainant is HDR Global Trading Limited (“Complainant”), represented by Mary D. Hallerman of SNELL & WILMER L.L.P, District of Columbia, USA. Respondent is Shawn Wilderom / CCCTrader (“Respondent”), Oklahoma, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bitmexpay.com>, registered with GoDaddy.com, LLC.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 12, 2022. The Forum received payment on April 12, 2022.
On April 13, 2022, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <bitmexpay.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 April 14, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 4, 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@bitmexpay.com. Also on April 14, 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 May 10, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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 operates a leading and prominent cryptocurrency-based virtual trading platform marketed to millions of consumers around the world in five languages. Complainant itself and through its wholly owned subsidiary HDR SG PTE. LTD. has rights in the BITMEX mark through registrations with various trademark agencies throughout the world. Complainant’s strong internet presence in connection with the BITMEX mark includes numerous domain names, such as <bitmex.com>, <bitmex.finance>, <bitmex.financial>, <bitmex.money>, <bitmex.exchange>, and <bitmex.info>.
Respondent’s <bitmexpay.com> domain name is confusingly similar to Complainant’s BITMEX mark.
Respondent lacks rights and legitimate interests in the <bitmexpay.com> domain name. Respondent is not commonly known by the domain name, nor has Complainant authorized or licensed Respondent to use its BITMEX mark in the domain name. Respondent does not use the domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead offers the domain name for sale while inactively holding its resolving website. See, e.g., HDR Global Trading Limited v. Milen Radumilo, FA1908001859583 (Forum Oct. 4, 2021) (“Where a respondent’s only use of a disputed domain name is to solicit offers to purchase the domain name, this indicates that the respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).”); HDR Global Trading Limited v. Mudassar Munir, FA2005001895547 (Forum June 10, 2020) (“The Panel notes that Respondent’s offer for sale of the Disputed Domain Name to Complainant does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under paragraph 4(c)(i) and (iii) of the Policy.”).
Respondent registered the <bitmexpay.com> domain name in bad faith in order to capitalize on the goodwill associated with Complainant’s rights in the BITMEX mark by attempting to confuse consumers as to the source and/or ownership of the domain name. Respondent offers the domain name for sale and otherwise inactively holds the domain name. Respondent failed to respond to Complainant’s cease-and-desist letters.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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 shown that it has rights in the BITMEX mark through registrations with various trademark agencies around the world e.g. European Union Intellectual Property Office (“EUIPO”) Reg. No. 16,462,327, registered August 11, 2017 and Korean Reg. No. 40-1463637, registered March 29, 2019. Complainant also has rights in other BITMEX marks registered by its wholly-owned subsidiary, HDR SG PTE. LTD. The Panel finds Respondent’s <bitmexpay.com> domain name to be confusingly similar to Complainant’s BITMEX mark as it incorporates the mark in its entirety and adds the word “pay”, which does nothing to distinguish the domain name from the mark, along with the “.com” generic top-level domain (“gTLD”), which may be ignored.
Complainant has established this element.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <bitmex.pay> domain name was registered on July 22, 2021, some years after Complainant has shown that its distinctive BITMEX mark had become very well-known worldwide. The domain name resolves to a web hosting page offering the domain name for sale and is otherwise inactive. On September 14, 2021 the web page stated that the domain name was available for sale at $75,500.00.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <bitmex.pay> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019).
Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bitmexpay.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: May 11, 2022
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