HDR Global Trading Limited v. \uc18c\ubbfc \ucd5c
Claim Number: FA1902001829914
Complainant is HDR Global Trading Limited ("Complainant"), represented by J. Damon Ashcraft of SNELL & WILMER L.L.P, Arizona, USA. Respondent is \uc18c\ubbfc \ucd5c ("Respondent"), South Korea.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bit-mex.co>, registered with GoDaddy.com, 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 the Forum electronically on February 14, 2019; the Forum received payment on February 19, 2019.
On February 15, 2019, GoDaddy.com, LLC confirmed by email to the Forum that the <bit-mex.co> 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 February 22, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 14, 2019 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@bit-mex.co. Also on February 22, 2019, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On March 15, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 owns a cryptocurrency trading platform and has used the BITMEX mark since 2014 in connection with financial trading platform services. Complainant claims that it is one of the most recognizable names in the cryptocurrency field; that its website receives tens of millions of page views per month; and that its trading volume in the past year was approximately $960 billion. Complainant owns a European Union trademark registration for BITMEX, registered in August 2017, and has trademark applications pending in other jurisdictions.
Respondent registered the disputed domain name <bit-mex.co> in March 2018. The domain name redirects Internet users to a page on Complainant's own website. Complainant states that Respondent is not sponsored by or affiliated with Complainant in any way; is not authorized or licensed to use Complainant's mark; and is not commonly known by the disputed domain name or Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <bit-mex.co> 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Management, Inc. v. Webnet-Marketing, Inc., FA 95095 (Forum July 31, 2000) (holding that the respondent's failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) ("In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.").
The disputed domain name <bit-mex.co> corresponds to Complainant's registered BITMEX trademark, inserting a hyphen and appending the ".co" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., TV Azteca S.A.B. de C.V. v. Johny Romero (aka Johny Alfonso Romero Rocha)/ Total Play Inc., D2012-2533 (WIPO Apr. 9, 2013) (finding <total-play.co> confusingly similar to TOTALPLAY). The Panel considers the disputed domain name to be confusingly similar to Complainant's registered mark.
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 corresponds almost exactly to Complainant's registered mark without authorization, and its sole apparent use has been to redirect Internet users to Complainant's own website. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Emerson Electric Co. v. Mariusz Kowalczyk, FA 1770167 (Forum Feb. 28, 2018) (finding lack of rights or interests under similar circumstances).
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)(i) of the Policy, bad faith may be shown by evidence that the domain name was acquired "primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent's] documented out-of-pocket costs directly related to the domain name." Under paragraph 4(b)(iii), 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 registered a domain name that corresponds almost exactly to Complainant's registered mark without authorization, and is using it for the sole apparent purpose of redirecting Internet users to Complainant's own website. In the absence of a plausible explanation from Respondent, the Panel infers that Respondent's intent is to create and profit from confusion with Complainant's mark, and possibly to profit by selling the domain name to Complainant or a competitor. See, e.g., Emerson Electric Co. v. Mariusz Kowalczyk, supra (finding bad faith under similar circumstances). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bit-mex.co> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: March 15, 2019
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