HDR Global Trading Limited v. jhon chen / Guangzhou Yulin Technology Co., Ltd.
Claim Number: FA2105001944559
Complainant is HDR Global Trading Limited (“Complainant”), represented by Anne M. Bolamperti of SNELL & WILMER L.L.P, Arizona, USA. Respondent is jhon chen / Guangzhou Yulin Technology Co., Ltd. (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bitmex.works>, registered with Gandi SAS.
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 May 10, 2021. The Forum received payment on May 10, 2021.
On May 12, 2021, Gandi SAS confirmed by e-mail to the Forum that the <bitmex.works> domain name is registered with Gandi SAS and that Respondent is the current registrant of the name. Gandi SAS has verified that Respondent is bound by the Gandi SAS 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 May 13, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 2, 2021 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@bitmex.works. Also on May 13, 2021, 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 June 7, 2021, 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, HDR Global Trading Limited, operates a cryptocurrency trading platform. Complainant has rights in the BITMEX mark through numerous registrations, including with the European Union Intellectual Property Office (“EUIPO”). Respondent’s <bitmex.works> domain name is identical to Complainant’s BITMEX mark.
Respondent lacks rights and legitimate interests in the <bitmex.works> domain name as Respondent is not commonly known by the domain name and is neither an authorized user nor licensee of the BITMEX mark. Additionally, Respondent does not use the domain name for either a bona fide offering of goods or services, nor for any legitimate noncommercial or fair use. Respondent instead uses the domain name to attempt to phish for Internet users’ login information.
Respondent registered and uses the <bitmex.works> domain name in bad faith with actual knowledge of Complainant’s rights in the BITMEX mark and attempts to attract Internet users to its website to obtain users’ login information for commercial gain. Respondent attempts to pass itself off as Complainant to obtain that information. Furthermore, Respondent failed to respond to a cease-and-desist letter.
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 numerous registrations, including with the EUIPO (e.g., Reg. No. 016,462,327, registered Aug. 11, 2017). The Panel finds Respondent’s <bitmex.works> domain name to be identical to Complainant’s BITMEX mark, only differing by the addition of the inconsequential “.works” generic top-level domain (“gTLD”), which may be ignored.
Complainant has established this element.
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in the Domain Name for purposes of paragraph 4(a)(ii) of the Policy, i.e.
(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.works> domain name was registered on December 2, 2020. Complainant has shown that, as at March 3, 2021, the domain name resolved to an account login webpage that displayed the BITMEX mark, the message “BitMEX Pro Backstage Management” in mixed Chinese and English characters, two boxes labeled “User Name” and “Password” in Chinese characters for typing in user name and password credentials and two seemingly clickable buttons “Submit” and “Reset” in Chinese characters below the two boxes.
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 domain name. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
In the circumstances of this case, the Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of a domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website 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 the respondent’s website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was well aware of Complainant’s BITMEX mark when registering the <bitmex.works> domain name and that, by using the domain name to masquerade as Complainant, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s mark as to the source of Respondent’s website.
Accordingly, the Panel finds that Respondent registered and is using the domain name in bad faith.
Complainant has established this element.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bitmex.works> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: June 9, 2021
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