HDR Global Trading Limited v. Zhong Guo Shi You Zhong Guo Shi You / Zhong Guo Shi You
Claim Number: FA2209002014129
Complainant is HDR Global Trading Limited (“Complainant”), represented by Mary D. Hallerman of SNELL & WILMER L.L.P, District of Columbia, USA. Respondent is Zhong Guo Shi You Zhong Guo Shi You / Zhong Guo Shi You (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bitmex888.top>, registered with Web Commerce Communications Limited dba WebNic.cc.
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 Forum electronically on September 29, 2022; Forum received payment on September 29, 2022.
On September 30, 2022, Web Commerce Communications Limited dba WebNic.cc confirmed by e-mail to Forum that the <bitmex888.top> domain name is registered with Web Commerce Communications Limited dba WebNic.cc and that Respondent is the current registrant of the name. Web Commerce Communications Limited dba WebNic.cc has verified that Respondent is bound by the Web Commerce Communications Limited dba WebNic.cc 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 3, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 24, 2022 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@bitmex888.top. Also on October 3, 2022, 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, Forum transmitted to the parties a Notification of Respondent Default.
On November 1, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 prominent cryptocurrency trading platform marketed to millions of consumers around the world in six languages. Complainant has been offering premier financial trading services in the field of digitized assets and cryptocurrencies since its inception in 2014. Today, Complainant’s business currently averages several hundreds of millions to a billion dollars or more of trading volume per day. Complainant is one of the largest cryptocurrency trading platforms in the world, servicing customers all over the world. Complainant has rights in the BITMEX through its registration in the European Union in 2018. The mark is registered elsewhere around the world and it is well known.
Complainant alleges that the disputed domain name is confusingly similar to its BITMEX mark because it wholly incorporates the mark and merely adds the number “888” and the “.top” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the BITMEX mark in any way. Additionally, Respondent fails to use the disputed domain name in connection with make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, the disputed domain name is not being used. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain in bad faith. The disputed domain name is not being used. Respondent had actual knowledge of Complainant’s rights in the BITMEX mark prior to registration of the disputed domain. Respondent failed to respond to two cease and desist letters. Respondent registered the disputed domain name using a privacy service. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the marks BITMEX and uses it to provide a cryptocurrency trading platform. The mark is well known.
Complainant’s rights in its mark date back to 2018.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name is not being used.
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 disputed domain name incorporates Complainant’s BITMEX mark in its entirety and merely adds the number “888” and the “.top” generic top-level domain (“gTLD”). Such changes are insufficient to distinguish the disputed domain name from Complainant’s mark under Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also HDR Global Trading Limited v. John Wilson, FA2109001962334 (Forum Oct. 4, 2021) (“Registration of a domain name that contains a mark in its entirety and adds a number along with a gTLD does not distinguish the domain name from the mark per Policy ¶ 4(a)(i).”)); see also Axis AB v. Roger Ralston, Directview Holdings, Inc., D2018-2058 (WIPO Nov. 13, 2018) (“Further, it is well established in decisions under the UDRP that the generic Top-Level Domain (‘gTLD’) . . . may be typically disregard for purposes of consideration of confusing similarity between a trademark and a domain name.”). Thus the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Here, the WHOIS information associated with the disputed domain shows that the registrant is known as “Zhong Guo Shi You Zhong Guo Shi You / Zhong Guo Shi You”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The disputed domain name is not being used. Failure to make an active use of a domain name demonstrates that Respondent is not using the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial fair use. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”). Therefore, the Panel finds that Respondent is not using the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c) (i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the disputed domain name is not being used. According to paragraph 3.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Jurisprudential Overview 3.0): “From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or “coming soon” page) would not prevent a finding of bad faith under the doctrine of passive holding. While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put.”
In the present case, Complainant’s trademark is well known. It is difficult to envisage any use of the disputed domain name that would not violate the Policy, see Morgan Stanley v. TONY / shentony, FA 1637186 (Forum Oct. 10, 2015) (“Respondent registered the disputed domain name [MORGANSTANLEY.ONLINE] in bad faith because . . . it is difficult to envisage any use of the disputed domain name that would not violate the Policy”); see also Singapore Airlines Ltd. v. European Travel Network, D2000-0641 (WIPO Aug. 29, 2000) (where selection of disputed domain name is so obviously connected to complainant’s well-known trademark, use by someone with no connection with complainant suggests opportunistic bad faith); see also Starwood Hotels & Resorts Worldwide, Inc., Sheraton Int’l IP, LLC, Westin Hotel Mgmt., L.P. v. Jingjing Tang, D2014-1040 (WIPO Aug. 19, 2014) (“The Panel finds that the [WESTIN] Marks are not such that could legitimately be adopted by traders other than for the purpose of creating an impression of an association with Complainant. Thus, the Panel concludes that the disputed domain names were registered in bad faith”).
There has been no response to the Complaint and Respondent used a privacy service, that is, it attempted to conceal its identity. Given these circumstances, the Panel finds that, in this particular case, a finding of bad faith use can be inferred even though the disputed domain name is not being actively used. See Telstra Corporation Limited v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bitmex888.top> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: November 2, 2022
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