HDR Global Trading Limited v. TrapNaija Media
Claim Number: FA1911001873231
Complainant is HDR Global Trading Limited ("Complainant"), represented by J. Damon Ashcraft of SNELL & WILMER L.L.P., Arizona, USA. Respondent is TrapNaija Media ("Respondent"), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bitmexoption.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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 27, 2019; the Forum received payment on November 27, 2019.
On November 28, 2019, NameCheap, Inc. confirmed by email to the Forum that the <bitmexoption.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 December 2, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 23, 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@bitmexoption.com. Also on December 2, 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 December 27, 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 in the field of digitized assets. 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 annual trading volume is $1 trillion. Complainant owns a European Union trademark registration for BITMEX, registered in August 2017, and has trademark applications pending in the United States and other jurisdictions. Complainant also asserts common law trademark rights in BITMEX.
Respondent registered the disputed domain name <bitmexoption.com> via a privacy registration service in October 2019. The domain name is being used for a website entitled "BitmexOption" that appears to offer cryptocurrency-related services similar to those offered by Complainant. According to the website, Respondent's address is "Los Angeles California"; the only other contact information provided is an email address and an Atlanta, Georgia, telephone number. Complainant states that Respondent is not sponsored by or affiliated with Complainant, has not been authorized or licensed to use Complainant's mark, and has not replied to Complainant's communication attempts.
Complainant contends on the above grounds that the disputed domain name <bitmexoption.com> 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <bitmexoption.com> incorporates Complainant's registered BITMEX trademark, adding the generic term "option" and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., HDR Global Trading Ltd. v. Sam Ben, FA 1866208 (Forum Nov. 5, 2019) (finding <bitmexfundmanager.com> confusingly similar to BITMEX); FIL Ltd. v. Domain Administrator, See PrivacyGuardian.org / Leth Broth, D2019-1917 (WIPO Oct. 22, 2019) (finding <fidelityexpertoptions.com> confusingly similar to FIDELITY); Capital One Financial Corp. v. Fred C / Sharron W, FA 1751172 (Forum Nov. 14, 2017) (finding <capital1option.com> confusingly similar to CAPITAL ONE). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
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 incorporates Complainant's registered mark without authorization, and it is being used for a website that purports to promote services that appear to be similar to and competitive with those offered by Complainant. Such use is unlikely to give rise to rights or legitimate interests under the Policy. See, e.g., Ripple Labs Inc. v. John Erea, FA 1786531 (Forum June 19, 2018) (finding lack of rights or interests in similar circumstances); Capital One Financial Corp. v. Fred C / Sharron W, supra (same).
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)(iii) of the Policy, 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 obviously intended to create confusion with Complainant, using a privacy registration service in an effort to conceal its identity, and is using the domain name for a website that promotes what appear to be competing services. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., IMDB.COM, INC. v. Salman Yousuf, FA 1839189 (Forum May 13, 2019) (finding bad faith in similar circumstances); Seiko Epson Corp. v. Ravi Singh, FA 1756508 (Forum Dec. 1, 2017) (same); Quicken Loans Inc. v. Domain Admin / Whois Privacy Corp., FA 1713986 (Forum Mar. 2, 2017) (same). Accordingly, 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 <bitmexoption.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: December 30, 2019
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