HDR Global Trading Limited v. Achilles Ewoma
Claim Number: FA2106001950581
Complainant is HDR Global Trading Limited (“Complainant”), represented by Anne M. Bolamperti of SNELL & WILMER L.L.P, Arizona, USA. Respondent is Achilles Ewoma (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bitmexcryptoworld.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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 10, 2021; the Forum received payment on June 10, 2021.
On June 10, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <bitmexcryptoworld.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 June 14, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 6, 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@bitmexcryptoworld.com. Also on June 14, 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 timely, formal response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default. Respondent did correspond via email on June 15, 2021, see below.
On July 8, 2021, Complainant submitted an additional submission.
On July 8, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it owns and operates a leading and prominent cryptocurrency-based virtual trading platform marketed to millions of consumers around the world in five languages. Complainant has been offering premier financial trading services in the field of digitized assets such as bitcoins, cryptocurrency, digital tokens, virtual currency and digital currencies since its inception in 2014. Today, Complainant’s business has grown to average between $1 billion and $5 billion of trading volume per day. With an annual trading volume of $1 trillion, Complainant is one of the largest trading platforms in the world, and it serves customers all over the world. Complainant has rights in the BITMEX mark through its registration in the European Union in 2017. The mark is registered elsewhere around the world.
Complainant alleges that the disputed domain name is confusingly similar to its BITMEX mark as it incorporates the mark in its entirety and merely adds the generic/descriptive terms “crypto world” along with the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its BITMEX mark in any way. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead offers competing crypto investing services at the resolving website, which displays Complainant’s mark. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent disrupts Complainant’s business for commercial gain by hosting competing services at the resolving website. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the BITMEX mark. Respondent failed to respond to Complainant’s cease-and-desist letters and initially hid its identity behind a WHOIS privacy service. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a timely, formal Response in this proceeding. In its emails to the Forum, Complainant states, in pertinent part:
Good day, it is quite unfortunate that we even got this because we try to follow all rules that pertains to this industry. We are a software development and apparently a remote client choose this name. We are by no means owners of the domain. We have proceeded to delete the content of the website immediately upon getting this mail and we have contacted namechaep to totally remove the domain name from our account. We sincerely apolgize for any inconveniences that this might have caused.
And:
We are not interested in the domain. Please we want to settle and get the domain deleted from our account. We have written to namecheap. We never knew there was a domain similar to it. Kindly guide on how to go about completely deleting it from our account.
C. Additional Submissions
In its Additional Submission, Complainant presses its case, providing evidence that, in informal email correspondence, Respondent acknowledged its registration and use of the disputed domain name. According to Complainant, this supports its allegations that Respondent registered and used the disputed domain name in bad faith and indicates that the disputed domain name should be transferred to Complainant. Complainant attaches an email from Respondent in which Respondent indicates that it would like to transfer the disputed domain name, but cannot do so because it is locked
For the reasons set forth below, the Panel will not make any findings of fact.
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.
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."
In the present case, the Panel finds that Respondent’s emails indicate that it consents to transfer the disputed domain name. Thus both parties have both asked for the domain name to be transferred to the Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.
See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
Given the common request of the Parties, it is Ordered that the <bitmexcryptoworld.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
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