OKEX Malta Ltd. v. Derek Abarigu
Claim Number: FA2303002034066
Complainant is OKEX Malta Ltd. (“Complainant”), represented by Sharoni S Finkelstein of c/o Venable LLP, California. Respondent is Derek Abarigu (“Respondent”), NG.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <okxfxtrade.com>, registered with 1API GmbH.
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 March 1, 2023; Forum received payment on March 1, 2023.
On March 2, 2023, 1API GmbH confirmed by e-mail to Forum that the <okxfxtrade.com> domain name is registered with 1API GmbH and that Respondent is the current registrant of the names. 1API GmbH has verified that Respondent is bound by the 1API GmbH 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 March 2, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 22, 2023 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@okxfxtrade.com. Also on March 2, 2023, 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 March 29, 2023, 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 offers a cryptocurrency exchange platform. Since 2017, Complainant’s affiliates have operated a platform and/or mobile application under the OKX brand and trademark, which enable users to sell, purchase, exchange, and trade digital assets online, and are among the largest and most well-known cryptocurrency exchanges in the world, serving millions of users in over 100 countries. Through the website <okx.com>, and corresponding mobile application branded under the OKX mark, Complainant’s affiliates offer a “one-stop shop” for cryptocurrency, digital assets, non-fungible tokens (NFTs), and block-chain related services. With its wide range of products, quality customer service, and robust technical support, Complainant’s business has grown immensely and is the trusted platform for millions of users. Such services are widely available to users worldwide, though not currently to users in the United States. Complainant has rights in the OKX mark through its registration with multiple trademark agencies, including in the European Union in 2022.
Complainant alleges that the disputed domain name is identical or confusingly similar to its OKX mark because it incorporates the mark in its entirety and merely adds the generic/descriptive terms “fx” and “trade”, as well as the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the OKX mark. Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, the resolving webpage attempts to pass off as Complainant in furtherance of a phishing scheme by purporting to offer competing services.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent registered the disputed domain name in order to take advantage of a likelihood of confusion with Complainant’s mark and divert customers for commercial gain. Respondent registered the disputed domain name in order to pass off as Complainant in the furtherance of a phishing scheme. Respondent had actual knowledge of Complainant’s mark. Respondent made use of a privacy service.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark OKX and uses it to offer a cryptocurrency exchange platform.
Complainant’s rights in its mark date back to at least 2022.
The disputed domain name was registered in 2023.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website displays a portion of Complainant’s distinctive logo and purports to offer the same services as 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 disputed domain name incorporates Complainant’s OKX mark in its entirety and merely adds the generic/descriptive terms “fx” and “trade”, as well as the “.com” generic top-level domain (“gTLD”). Under Policy ¶ 4(a)(i), fully incorporating a mark in its entirety and adding a descriptive or generic term fails sufficiently to distinguish a domain name from a registered mark. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable 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 Countrywide Fin. Corp. v. Johnson & Sons Sys., FA 1073019 (Forum Oct. 24, 2007) (holding that the addition of the generic top-level domain (“gTLD”) “.com” was irrelevant). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).
Further, according to 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”): “In specific limited instances, while not a replacement as such for the typical side-by-side comparison, where a panel would benefit from affirmation as to confusing similarity with the complainant’s mark, the broader case context such as website content trading off the complainant’s reputation, … may support a finding of confusing similarity.”
Here, the resolving website displays a portion of Complainant’s distinctive logo and offers the same services as Complainant; this may induce consumers to believe that Respondent’s site is somehow affiliated with Complainant. This supports the side-by-side comparison above.
Complainant alleges that Respondent engages in phishing, but does not provide any evidence to support that allegation. Thus the Panel finds that Complainant has failed to satisfy its burden of proof for that allegation and will not further discuss it.
Complainant has not licensed or otherwise authorized Respondent to use its OKX 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 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). Here, the WHOIS information for the disputed domain name shows that the registration is “Derek Abarigu”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The resolving website purports to offer services that compete with those of Complainant. Use of a disputed domain name that incorporates a mark to offer competing services is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (“use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Therefore, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent has no 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 resolving website offers services that compete with those of Complainant. Past panels have found bad faith pursuant to Policy ¶ 4(b)(iii) where a respondent appropriates a complainant’s mark to divert the complainant’s customers to the respondent’s competing business. See Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Forum Aug. 1, 2006) (finding that the respondent registered and used the <classicmetalroofing.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii) by redirecting Internet users to the respondent’s competing website); see also Univ. of Texas Sys. v. Smith, FA 1195696 (Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)); see also DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”). Thus the Panel finds bad faith registration and use under Policy ¶ 4(b)(iii).
Further, the Panel infers – on the balance of the evidence before it – that Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website displays a portion of Complainant’s distinctive logo and purports to offer the same services as Complainant. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); 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). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under 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 <okxfxtrade.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: March 30, 2023
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