HDR Global Trading Limited v. meng wang
Claim Number: FA2304002041635
Complainant is HDR Global Trading Limited (“Complainant”), represented by Mary D. Hallerman of SNELL & WILMER L.L.P, District of Columbia, USA. Respondent is meng wang (“Respondent”), Central African Republic.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bitmexlncpro.com>, registered with GoDaddy.com, LLC.
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 Forum electronically on April 25, 2023; Forum received payment on April 25, 2023.
On April 26, 2023, GoDaddy.com, LLC confirmed by e-mail to Forum that the <bitmexlncpro.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 April 27, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 17, 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@bitmexlncpro.com. Also on April 27, 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 May 18, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant, HDR Global Trading Limited, offers cryptocurrency trading services.
Complainant has rights in the BITMEX mark through its registration of the mark with national registrars worldwide.
Respondent’s <bitmexlncpro.com> domain name is virtually identical and confusingly similar to Complainant’s mark because it incorporates the BITMEX mark in its entirety and adds the letters “lnc”, the term “pro”, and the “.com” generic top-level domain (“gTLD”).
Respondent has no legitimate interests in the <bitmexlncpro.com> domain name. Respondent is not commonly known by the at-issue domain name and Complainant has not authorized or licensed Respondent any rights in the BITMEX mark. Additionally, Respondent does not use the at-issue domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent previously used the domain name in an attempt to pass off as having an affiliation with Complainant and offer similar cryptocurrency services. The at-issue domain name currently resolves to an inactive webpage which is also not a bona fide use of the domain name under the Policy.
Respondent registered and uses the <bitmexlncpro.com> domain name in bad faith. Respondent registered the domain name in order to pass itself off as Complainant and divert customers for commercial gain. The domain name currently resolves to an inactive webpage. Respondent makes use of a privacy service and failed to Respond to a cease and desist letter. Finally, Respondent registered the 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 used the at-issue domain name to offer services that compete with Complainant and currently holds the domain name passively.
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”).
Complainant contends as follows:
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Any of Complainant’s national trademark registrations for the BITMEX mark is conclusive evidence of Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Sanlam Life Insurance Limited v. Syed Hussain / Domain Management MIC, FA 1787219 (Forum June 15, 2018) (“Registration of a mark with the EUIPO, a government agency, sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i).”); see also, Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark); see also, Häfele Vietnam LLC v. Cong Hoan, FA 1813668 (Forum Nov. 28, 2018) (“Registration of a mark with the WIPO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <bitmexlncpro.com> domain name contains Complainant’s BITMEX trademark followed with term “lncpro” and with all followed by the “.com” top-level domain name. The differences between Complainant’s trademark and Respondent’s at-issue domain name fail to distinguish the domain name from the mark under Policy ¶ 4(a)(i). Therefore, the Panel finds that Respondent’s <bitmexIncpro.com> domain name is confusingly similar to Complainant’s BITMEX trademark. 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).
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 <bitmexlncpro.com> 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. See Charter Communications Holding Company, LLC v. Taha Shaikh / Tskdesigners, FA 1814475 (Forum Nov. 25, 2018) (finding no rights or legitimate interests in <spectrumfeature.com> because complainant never gave respondent permission to use the mark in any manner and “Panels may use these assertions as evidence that no rights or legitimate interests exist in a disputed domain name.”).
The WHOIS information for the at-issue domain name shows that the domain name’s registrant is “meng wang” and the record before the Panel contains no evidence that otherwise tends to show that Respondent is commonly known by the <bitmexlncpro.com> 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).
Respondent used the at-issue domain name to address a website that pretended to be affiliated with Complainant and offered cryptocurrency trading services that competed with Complainant’s services. Respondent’s use of <bitmexlncpro.com> in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate non-commercial or fair use under Policy ¶ 4(c)(iii). See Vanguard Trademark Holdings USA LLC v. Dan Stanley Saturne, FA 1785085 (Forum June 8, 2018) (“Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use” where “Respondent is apparently using the disputed domain name to offer for sale competing services.”).
Currently, Respondent holds the at-issue domain name passively. Browsing to <bitmexlncpro.com> returns a system error message stating in part: “This site can’t be reached.” Respondent’s failure to make active use of the at-issue domain name is also neither a bona fide offering of goods or services, nor a legitimate non-commercial or fair use of <bitmexlncpro.com> per Policy ¶¶ 4(c)(i) and (iii).
Given the forgoing, Complainant satisfies its initial burden and demonstrates Respondent’s lack of rights and lack of legitimate interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
Respondent’s <bitmexlncpro.com> domain name was registered and used in bad faith. As discussed below without being exhaustive, bad faith circumstances are present which allow the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First, Respondent used <bitmexlncpro.com> to deceive internet users into believing that the domain name and its previously addressed website were sponsored by or associated with Complainant. Notably, Respondent’s <bitmexlncpro.com> website offered services that compete with Complainant’s services. Respondent’s use of the confusingly similar domain name to attract internet users and capitalize on their confusion by offering competing services demonstrates Respondent’s bad faith registration and use of the domain name under Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv). See Spark Networks PLC v. Houlihan, FA 653476 (Forum Apr. 18, 2006) (holding that the respondent’s registration of a domain name substantially similar to the complainant’s AMERICAN SINGLES mark in order to operate a competing online dating website supported a finding that respondent registered and used the domain name to disrupt the complainant’s business under Policy ¶ 4(b)(iii)); see also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”); see also, ShipCarsNow, Inc. v. Wet Web Design LLC, FA1501001601260 (Forum Feb. 26, 2015) (“Respondent’s use of the domain name to sell competing services shows that Respondent is attempting to commercially benefit from a likelihood of confusion. Therefore the Panel finds that a likelihood of confusion exists, that Respondent is attempting to commercially benefit from Complainant’s mark, and that Complainant has rights that predate any rights of the Respondent, all of which constitutes bad faith under Policy ¶ 4(b)(iv).”).
Respondent now holds the <bitmexlncpro.com> domain name passively. On browsing to <bitmexlncpro.com> an error message is returned and no substantive content is displayed. Respondent’s passive holding of <bitmexlncpro.com> further indicates bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”); see also, Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018) (“Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent uses the domain name to host an inactive website.”).
Moreover, Respondent had actual knowledge of Complainant’s rights in the BITMEX mark when it registered <bitmexlncpro.com> as a domain name. Respondent’s actual knowledge of Complainant’s trademark name is evident from the notoriety of the mark and from Respondent’s prior use of the domain name to offer services that compete with Complainant’s services. Registering and using <bitmexlncpro.com> with knowledge of Complainant’s rights in BITMEX, in itself, shows 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, Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (“Complainant contends Respondent’s appropriation of Complainant’s trademark was a clear intent to trade upon Complainant’s reputation and goodwill in order to confuse Internet users. Therefore, the Panel finds Respondent did have actual knowledge of Complainant’s mark prior to registration and this constitutes bad faith per Policy ¶ 4(a)(iii).”); 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 <bitmexlncpro.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: May 19, 2023
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