HDR Global Trading Limited v. Berk Say / Aloparca Oto Yedekparca Elektronik Hiz San ve Dis Tic. Ltd.
Claim Number: FA2105001945530
Complainant is HDR Global Trading Limited (“Complainant”), represented by Anne Bolamperti of SNELL & WILMER L.L.P, Arizona, USA. Respondent is Berk Say / Aloparca Oto Yedekparca Elektronik Hiz San ve Dis Tic. Ltd. (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bitmexslayer.com>, registered with Tucows Domains Inc.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 18, 2021; the Forum received payment on May 18, 2021.
On May 19, 2021, Tucows Domains Inc. confirmed by e-mail to the Forum that the <bitmexslayer.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the names. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 May 20, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 9, 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@bitmexslayer.com. Also on May 20, 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 15, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <bitmexslayer.com> domain name is confusingly similar to Complainant’s BITMEX mark.
2. Respondent does not have any rights or legitimate interests in the <bitmexslayer.com> domain name.
3. Respondent registered and uses the <bitmexslayer.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant, HDR Global Trading Limited, is a leading owner and operator of a cryptocurrency trading platform marketed to consumers around the world. Complainant maintains registrations for its BITMEX mark with authorities in China, the European Union, the Republic of Korea, and with the United States Patent and Trademark Office (“USPTO”).
Respondent registered the <bitmexslayer.com> domain name April 11, 2020, and uses it to conduct a phishing scheme.
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 Panel finds that Complainant has established rights in the BITMEX mark under Policy ¶ 4(a)(i) through its registration with authorities in China, the European Union, the Republic of Korea, and the USPTO (e.g. European Union Intellectual Property Office (“EUIPO”) Reg. No. 6,462,327, registered Nov. 8, 2017). See Red Hat, Inc. v. Muhammad Shahzad, FA 1787738 (Forum June 19, 2018) (“Registration of a mark with multiple trademark agencies is sufficient to demonstrate rights to a mark per Policy ¶ 4(a)(i).”).
Respondent’s <bitmexslayer.com> domain name incorporates Complainant’s BITMEX mark and simply adds a generic word and the “.com” gTLD. These changes do not distinguish a disputed domain name from a mark. See Oki Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001) (“[T]he fact that a domain name wholly incorporates a Complainant’s registered mark is sufficient to establish identity [sic] or confusing similarity for purposes of the Policy despite the addition of other words to such marks”). Therefore, the Panel finds that Respondent’s <bitmexslayer.com> domain name is confusingly similar to Complainant’s BITMEX mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Complainant argues that Respondent does not have rights or legitimate interests in the <bitmexslayer.com> domain name because Respondent is not commonly known by the disputed domain name, and Respondent is not authorized to use Complainant’s BITMEX mark. The WHOIS information of record identifies Respondent as “Berk Say.” Therefore, the Panel finds that Respondent is not commonly known by the <bitmexslayer.com> domain name, and thus has no rights under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
Complainant argues that Respondent is not using the <bitmexslayer.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent is using the <bitmexslayer.com> domain name to acquire usernames and passwords from users who are trying to access Complainant’s site. Using a domain name to phishes for personal identification information from users is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See United States Postal Service v. Kehinde Okunola / Genuine ICT Centre, FA 1785420 (Forum June 6, 2018) (“Respondent uses the <uspscouriers.com> domain name both to sell services competing with the business of Complainant and to phish for personal identification information from Internet users. Neither of these uses of the domain name constitutes a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy.”). Complainant demonstrates that when users access the <bitmexslayer.com> domain name, they are prompted to enter their username and password, as if they were logging into Complainant’s webpage. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) and (iii).
Complainant also shows that the <bitmexslayer.com> domain name currently resolves to an inactive webpage, which the Panel finds is also not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See CrossFirst Bankshares, Inc. v Yu-Hsien Huang, FA 1785415 (Forum June 6, 2018) (“Complainant demonstrates that Respondent fails to actively use the disputed domain name as it resolves to an inactive website. Therefore, the Panel finds that Respondent fails to actively use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <bitmexslayer.com> domain name in bad faith because Respondent uses the disputed domain name to phish for user information. Using a domain name to pass off as a complainant, in furtherance of a phishing scheme, is evidence that a domain name was registered and is used in bad faith under Policy ¶ 4(b)(iv). See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use); see also Wells Fargo & Co. v. Maniac State, FA 608239 (Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant’s customers). Accordingly, the Panel finds bad faith under Policy ¶ 4(b)(iv).
Complainant also argues that Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the BITMEX mark. Complainant highlights its numerous registrations for the BITMEX mark with agencies around the world, and asserts that it is well-known in cryptocurrency markets. The Panel agrees, noting Respondent’s use of the disputed domain name to obtain credentials for gaining access to user’s cryptocurrency accounts, and finds that Respondent had actual knowledge of Complainant’s rights in the BITMEX mark and therefore acted in bad faith under Policy ¶ 4(a)(iii). See Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bitmexslayer.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: June 16, 2021
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