HDR Global Trading Limited v. HANFALAI
Claim Number: FA2305002046656
Complainant is HDR Global Trading Limited (“Complainant”), represented by Mary D. Hallerman of SNELL & WILMER L.L.P, Washington D.C., USA. Respondent is HANFALAI (“Respondent”), Hong Kong.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bitmexx.vip>, (‘the Domain Name’) registered with ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to Forum electronically on May 30, 2023; Forum received payment on May 30, 2023.
On June 1, 2023, ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED confirmed by e-mail to Forum that the <bitmexx.vip> Domain Name is registered with ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED and that Respondent is the current registrant of the name. ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED has verified that Respondent is bound by the ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED 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 1, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 21, 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@bitmexx.vip. Also on June 1, 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 June 27, 2023 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarised as follows:
The Complainant through a wholly owned subsidiary is the owner of the mark BITMEX, registered in the EU for financial services since 2017. It owns bitmex.com.
The Domain Name registered in 2023 is confusingly similar to the Complainant’s mark containing it in its entirety and adding only the letter ‘x’ and the gTLD .vip of which prevent confusing similarity.
The Respondent does not have any rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant.
The Domain Name has been pointed to a site offering competing financial services using the Complainant’s BITMEX mark and its logo in its masthead and using material copied from the Complainant’s web site. This is not a bona fide offering of goods or services or legitimate use. It is registration and use in opportunistic bad faith causing confusion amongst Internet users for commercial gain and disrupting the Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant through a wholly owned subsidiary is the owner of the mark BITMEX, registered in the EU for financial services since 2017. It owns bitmex.com.
The Domain Name registered in 2023 has been pointed to a site offering competing financial services using the Complainant’s BITMEX mark and its logo in its masthead and material copied from the Complainant’s web site.
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 Domain Name consist of the Complainant's BITMEX mark (which is registered in the EU for financial services as of March 2017), the letter ‘x’ and the gTLD .vip.
A misspelling by a single letter does not prevent confusing similarity between the Domain Name and the Complainant's BITMEX trade mark pursuant to the Policy. See Twitch Interactive Inc. v. Antonio Teggi, FA 1626528 (Forum Aug 3, 2015) (where an additional ‘c’ was added)
The gTLD .vip does not serve to distinguish a domain name from a complainant’s mark. See Red Hat Inc v. Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s registered mark.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark. There is no evidence or reason to suggest the Respondent is commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The use of the Domain Name was commercial and so could not be legitimate non commercial or fair use.
The web site attached to the Domain Name used the Complainant's BITMEX mark and the Complainant’s logo in its masthead and material copied from the Complainant’s web site to offer competing financial services and to suggest a commercial connection with the Complainant. The Panel finds this use is deceptive. As such it cannot amount to the bona fide offering of goods and services. (See Am. Intl Group Inc v. Benjamin FA 944242 (Forum May 11, 2007) finding that the Respondent's use of a confusingly similar domain name to advertise services which competed with the Complainant's business did not constitute a bona fide use of goods and services.)
The Domain Name appears to be a typosquatting registration differing from the Complainant’s mark by only one letter. Typosquatting is an indication of a lack of rights or legitimate interests. See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”).
The Respondent has not answered this Complaint or rebutted the prima facie case evidenced by the Complainant as set out above.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Domain Name seeks to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v. Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith). Typosquatting also indicates the Respondent had knowledge of the Complainant and its rights. See InfoSpace, Inc. v. Greiner, FA 227653 (Forum Mar. 8, 2004) (“Respondent’s domain name is a simple and popular variation of a trademark commonly used by typosquatters …Such a domain name evidences actual knowledge of the underlying mark prior to the registration of the domain name, and as Respondent failed to submit any evidence to counter this inferrence [sic], Respondent’s actions evidence bad faith registration of the disputed domain name.”).
Additionally the use made of the Domain Name in relation to the Respondent’s site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as the Complainant’s BITMEX mark and logo is used in the masthead of the Respondent’s web site and material has been copied and used from the Complainant’s web site without permission for competing financial services. The use of the Complainant’s logo and material from the Complainant’s web site demonstrates that the Respondent had actual knowledge of the Complainant’s rights, business and services.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site and services offered on it likely to disrupt the business of the Complainant. (See Asbury Auto Group Inc v. Tex. Int'l Prop Assocs FA 958542 (Forum May 29, 2007) finding that the respondent's use of the disputed domain name to advertise car dealerships that competed with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of those competing dealerships and was therefore evidence of bad faith and use). See Allianz of AM. Corp v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use where the respondent was diverting Internet users searching for the complainant to its own website).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bitmexx.vip> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: June 27, 2023
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