HDR Global Trading Limited v. egor trade
Claim Number: FA2107001953695
Complainant is HDR Global Trading Limited (“Complainant”), represented by Anne M. Bolamperti of SNELL & WILMER L.L.P, Arizona, USA. Respondent is egor trade (“Respondent”), Kazakhstan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bitmexleaders.info>, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 1, 2021; the Forum received payment on July 1, 2021.
On July 2, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <bitmexleaders.info> 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 July 6, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 26, 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@bitmexleaders.info. Also on July 6, 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 July 28, 2021, 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, operates an online platform for investing and trading cryptocurrency.
Complainant has rights in the BITMEX mark through its registration with the World Intellectual Property Organization (“WIPO”) as well as the mark’s registration with other registrars worldwide.
Respondent’s <bitmexleaders.info> domain name is confusingly similar to Complainant’s BITMEX mark, only differing by the addition of the generic term “leaders” and the “.info” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <bitmexleaders.info> domain name as it is not commonly known by the at-issue domain name and is neither an authorized user nor licensee of the BITMEX mark. Additionally, Respondent does not use the disputed domain name for any bona fide offer of goods or services, nor for any legitimate noncommercial or fair use. Instead, Respondent uses the at-issue domain name to host a website unrelated to Complainant’s business.
Respondent registered and uses the <bitmexleaders.info> domain name in bad faith. Respondent uses the at-issue domain name primarily to divert internet users to its website to confuse users as to the owner or sponsor of the domain. Respondent also failed to respond to multiple cease-and-desist letters regarding the disputed domain name. Additionally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the BITMEX mark.
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 unrelated to Complainant.
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 WIPO trademark registration for BITMEX, as well as any of its other trademark registrations worldwide, is conclusive evidence of its rights in a mark under Policy ¶ 4(a)(i). See ECCO SKO A/S v. Bobrov Danila, FA 1770718 (Forum Mar. 12, 2018) (“Complainant has rights in the ECCO mark based on a series of trademark registrations via the Madrid Protocol through the World Intellectual Property Organization (“WIPO”)).
Respondent’s <bitmexleaders.info> domain name contains Complainant’s entire BITMEX trademark suffixed with the term “leaders.” The domain name concludes with the top-level domain name “.info.” 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). Accordingly, the Panel finds that Respondent’s <bitmexleaders.info> 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 <bitmexleaders.info> 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 <bitmexleaders.info> as “egor trade” and the record before the Panel contains no evidence that otherwise tends to show that Respondent is commonly known by the <bitmexleaders.info> 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 <bitmexleaders.info> domain name to address Respondent’s <bitmexleaders.info> website. The website has little or no substantive content and no relation to Complainant. A screenshot produced by Complainant shows that Respondent’s <bitmexleaders.info> website appears to consist solely of a blog template from a web authoring program with the heading “bitmesleaders.info” applied thereto. Therefore, Respondent’s use of the <bitmexleaders.info> domain name 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 Spike's Holding, LLC v. Nexperian Holding Limited, FA 1736008 (Forum July 21, 2017) (“Using a confusingly similar domain to display unrelated content can evince a lack of a bona fide offering of goods or services or legitimate noncommercial or fair use… The Panel therefore finds that Respondent’s unrelated use of the <finishnline.com> domain name evinces a lack of rights and legitimate interests under Policy ¶ 4(c)(i) & (iii).”).
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 discussed above regarding rights and interests, Respondent uses the at-issue domain name in to address a website unrelated to Complainant. Respondent’s use of its <bitmexleaders.info> domain name to divert internet users away from Complainant’s business and to its own website shows Respondent’s bad faith disruption and attraction for commercial gain under Policy ¶¶ 4(b)(iii) and (iv). See PopSockets LLC v. san mao, FA 1740903 (Forum Aug. 27, 2017) (finding disruption of a complainant’s business which was not directly commercial competitive behavior was nonetheless sufficient to establish bad faith registration and use per Policy ¶ 4(b)(iii)); see also Radio Flyer Inc. v. liupei, FA1919897 (Forum Dec. 16, 2020) (“The use of a disputed domain name to imply an association with a complainant and offer unrelated services is evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv).”)
Additionally, Respondent had actual knowledge of Complainant’s rights in the BITMEX mark when it registered <bitmexleaders.info> as a domain name. Respondent’s actual knowledge is evident given the notoriety of Complainant’s BITMEX trademark. 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 <bitmexleaders.info> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: July 29, 2021
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