HDR Global Trading Limited v. Nathaniel Kaufman
Claim Number: FA2006001901845
Complainant is HDR Global Trading Limited (“Complainant”), represented by David G. Barker of SNELL & WILMER L.L.P, Arizona. Respondent is Nathaniel Kaufman (“Respondent”), Great Britain.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bitmexcrypto.ltd>, registered with NameSilo, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 25, 2020; the Forum received payment on June 25, 2020.
On June 26, 2020, NameSilo, LLC confirmed by e-mail to the Forum that the <bitmexcrypto.ltd> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 June 29, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 20, 2020 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@bitmexcrypto.ltd. Also on June 29, 2020, 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 July 22, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant, HDR Global Trading Limited, owns and operates a cryptocurrency-based virtual trading platform.
Complainant has rights in BITMEX through its registration of the mark with the multiple trademark agencies, including the European Union Intellectual Property Office (“EUIPO”).
Respondent’s <bitmexcrypto.ltd> domain name is confusingly similar to Complainant’s mark because it incorporates the BITMEX mark entirely and merely adds the generic term “crypto” and the “.ltd” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interest in the <bitmexcrypto.ltd> domain name. Complainant has not authorized or licensed Respondent to use the BITMEX mark and Respondent is not affiliated with Complainant in any way. Additionally, Respondent does not use the at-issue domain name for any bona fide offer of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to divert Internet users to Respondent’s site to phish for personal information.
Respondent registered and uses the <bitmexcrypto.ltd> domain name in bad faith. Respondent uses the domain name to create an impression of affiliation with Complainant and collect consumers’ login information as part of a phishing scam. Additionally, Respondent had actual knowledge of Complainant’s rights in the BITMEX mark based on Respondent’s use of the BITMEX mark and the reputation of Complainant’s mark in the cryptocurrency industry.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the BITMEX mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the BITMEX trademark.
Respondent uses the at-issue domain name to address a website that is intent on phishing for the personal information and login credentials of third parties.
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 at-issue domain name is identical to a trademark in which Complainant has rights.
Complainant’s EUIPO trademark registration for BITMEX, as well as other trademark registrations worldwide, is conclusive evidence of its rights in a mark under Policy ¶ 4(a)(i). See Sanlam Life Insurance Limited v. Syed Hussain / Domain Management MIC, FA 1787219 (Forum June 15, 2018) (“Registration of a mark with the EUIPO, a government agency, sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <bitmexcrypto.ltd> domain name contains Complainant’s entire BITMEX trademark prefixed by the suggestive term “crypto” and concludes with the top-level domain name “.ltd.” The differences between Complainant’s BITMEX trademark and Respondent’s at-issue domain name fail to distinguish the domain name from the mark under Policy ¶ 4(a)(i). Therefore, the Panel finds that Respondent’s <bitmexcrypto.ltd> domain name is confusingly similar to Complainant’s BITMEX trademark. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the <bitmexcrypto.ltd> domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name identifies the registrant of <bitmexcrypto.ltd>as “Nathaniel Kaufman” and the record before the Panel contains no evidence that otherwise tends to show that Respondent is commonly known by the <bitmexcrypto.ltd>domain name. The Panel therefore concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Additionally, Respondent uses the confusingly similar <bitmexcrypto.ltd>domain name to address Respondent’s <bitmexcrypto.ltd> website which is designed to phish for personal information and login credentials for Complainant’s legitimate accounts. Respondent’s use of the <bitmexcrypto.ltd> to facilitate fraud on third parties and Complainant constitutes neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a non-commercial or fair use under Policy ¶ 4(c)(iii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent lacked rights and legitimate interests in a domain name with which it conducted a phishing scheme to procure “Internet users’ personal information”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there is evidence from which the Panel may conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
As mentioned above regarding rights and interests, Respondent uses the at-issue domain name in furtherance of a phishing scheme. Respondent’s use of the confusingly similar <bitmexcrypto.ltd> domain name in this manner indicates Respondent’s bad faith regarding the at-issue domain name. See Zoetis Inc. and Zoetis Services LLC v. VistaPrint Technologies Ltd, FA1506001623601 (Forum July 14, 2015) (“Respondent’s attempt to use the <zoietis.com> domain name to phish for personal information in fraudulent emails also constitutes bad faith pursuant to Policy ¶ 4(a)(iii).”); see also Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (“[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses that to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).”).
Additionally, Respondent had actual knowledge of Complainant’s rights in the BITMEX mark when it registered <bitmexcrypto.ltd>as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s BITMEX trademark and from Respondent’s inclusion of a term (crypto) within the at-issue domain name that is suggestive of Complainant’s cryptocurrency related business. Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s trademark rights in such domain name further indicates Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bitmexcrypto.ltd> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: July 22, 2020
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