HDR Global Trading Limited v. Jatin Shah
Claim Number: FA2009001915432
Complainant is HDR Global Trading Limited ("Complainant"), represented by David G. Barker of SNELL & WILMER L.L.P, Arizona, United States. Respondent is Jatin Shah ("Respondent"), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <bitmexanalytics.com> and <bitmexoi.com>, 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 September 30, 2020; the Forum received payment on September 30, 2020.
On October 1, 2020, GoDaddy.com, LLC confirmed by email to the Forum that the <bitmexanalytics.com> and <bitmexoi.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 October 5, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 26, 2020 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@bitmexanalytics.com, postmaster@bitmexoi.com. Also on October 5, 2020, 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 October 29, 2020, 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant owns and operates a cryptocurrency trading platform. Complainant states that it hosts more cryptocurrency trades than any other platform in the world, with an annual trading volume of $1 trillion. Complainant has used the BITMEX mark since 2014 in connection with financial trading platform services, and owns trademark registrations for BITMEX in India, the European Union, China, and other jurisdictions.
Respondent registered the disputed domain names <bitmexanalytics.com> and <bitmexoi.com> in December 2019. The <bitmexanalytics.com> domain name is being used for a website titled "Bitmex Analytics," while the <bitmexoi.com> domain name is being used for a website titled "Bitmexoi" ("OI" being an abbreviation for "open interest," the number of outstanding derivative contracts). Both websites contain information about cryptocurrency prices and related data, with multiple instances of the BITMEX mark appearing on each site. The "Bitmexoi" site includes an "About Us" page that describes Complainant, falsely suggesting that the site is owned or operated by Complainant. The "Bitmex Analytics" site includes a statement identifying the copyright owner as Bitmex Analytics. Complainant states that a similar "About Us" page appeared on the "Bitmex Analytics" site, but was removed after Complainant sent two cease-and-desist letters to Respondent. Both sites also include a "Contact Us" page with a form prompting the user to provide a name, email address, and other information. Complainant states that Respondent is not sponsored or endorsed by Complainant; that Complainant has never authorized or licensed to Respondent any rights regarding its BITMEX mark; and that Respondent is not commonly known by the disputed domain names.
Complainant contends on the above grounds that the disputed domain names <bitmexanalytics.com> and <bitmexoi.com> are confusingly similar to its BITMEX mark; that Respondent lacks rights or legitimate interests in the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that each of the disputed domain names is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and are 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 names <bitmexanalytics.com> and <bitmexoi.com> both incorporate Complainant's registered BITMEX trademark, adding the generic term "analytics" or the letters "oi" (standing for "open interest") and appending the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain names and Complainant's mark. See, e.g., HDR Global Trading Ltd. v. Sun Wukong, FA 1858673 (Forum Sept. 22, 2019) (finding <bitmexom.com> and <bitmexte.com> confusingly similar to BITMEX); Optum, Inc. v. W Allan Klindworth / Fortel, FA 1691933 (Forum Dec. 12, 2016) (finding <optumanalytics.com> confusingly similar to OPTUM); Facebook Inc. v. Sleek Names, SL Names, VSAUDHA, D2015-0547 (WIPO May 29, 2015) (finding <facebookanalytics.com> confusingly similar to FACEBOOK). The Panel considers each of the disputed domain names 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 names, 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 names both incorporate Complainant's registered mark without authorization, and they are being used for websites that appear to be intended to reach and solicit contact information from potential customers. Both websites display repeated instances of Complainant's mark along with information related to Complainant's industry, and in the Panel's view are likely to create the false impression that they are operated by or otherwise affiliated with Complainant. Such use is unlikely to give rise to rights or legitimate interests under the Policy. See, e.g., Google LLC v. Sihao Wang, FA 1898320 (Forum June 26, 2020) (finding lack of rights or interests in similar circumstances).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain names, 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 names.
Finally, Complainant must show that the disputed domain names were registered and are 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."
As stated above, each of the disputed domain names incorporates Complainant's registered mark without authorization, and each is being used for a website that appears to be designed to create a false impression of affiliation with Complainant for Respondent's commercial gain. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Google LLC v. Sihao Wang, supra (finding bad faith in similar circumstances). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bitmexanalytics.com> and <bitmexoi.com> domain names be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: October 29, 2020
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