HDR Global Trading Limited v. Client Care / Web Commerce Communications Limited
Claim Number: FA2306002051322
Complainant is HDR Global Trading Limited ("Complainant"), represented by Mary D. Hallerman of Snell & Wilmer L.L.P., District of Columbia, USA. Respondent is Client Care / Web Commerce Communications Limited ("Respondent"), Malaysia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <av5-bitmex.com>, registered with ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to Forum electronically on June 29, 2023; Forum received payment on June 29, 2023.
On June 29, 2023, ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED confirmed by email to Forum that the <av5-bitmex.com> 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 July 3, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 24, 2023 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@av5-bitmex.com. Also on July 3, 2023, the Written Notice of the Complaint, notifying Respondent of the email 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 July 27, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin 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 owns and operates a cryptocurrency trading platform. Complainant states that it is one of the largest such platforms in the world, with an average trading volume of at least several hundred million dollars per day. Complainant has used the BITMEX mark since 2014 in connection with financial trading platform services. Complainant owns trademark registrations for BITMEX in standard character form in the European Union, China, and other jurisdictions, along with registrations for related design marks.
Respondent registered the disputed domain name <av5-bitmex.com> in March 2023. The domain name is being used for a website that uses Complainant's BITMEX mark to promote cryptocurrency trading services that compete with those offered by Complainant. Complainant alleges that the website is intended to deceive users into believing that they are dealing with Complainant and thereby induce them into transferring valuable cryptocurrency to Respondent. Complainant states that Respondent is not commonly known by the domain name, is not sponsored or endorsed by Complainant, and is not authorized or licensed to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <av5-bitmex.com> is confusingly similar to its BITMEX mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <av5-bitmex.com> incorporates Complainant's registered BITMEX trademark, adding the nondistinctive term "av5," a hyphen, and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., HDR Global Trading Ltd. v. Web Commerce Communications Ltd., Client Care, D2023-1948 (WIPO June 26, 2023) (finding <bitmex08.com> confusingly similar to BITMEX); HDR Global Trading Ltd. v. Client Care / Web Commerce Communications Ltd., FA 2035750 (Forum Apr. 12, 2023) (finding <bitmex66.com> confusingly similar to BITMEX); HDR Global Trading Ltd. v. Client Care / Web Commerce Communications Ltd., FA 2029680 (Forum Feb. 27, 2023) (finding <bitmex880.com> confusingly similar to BITMEX); HDR Global Trading Ltd. v. Client Care / Web Commerce Communications Ltd., FA 1999287 (Forum July 5, 2022) (finding <bitmex9.com> confusingly similar to BITMEX); Textron Innovations Inc. v. Shirley T. Barnes / malca-mit, FA 1799244 (Forum Sept. 11, 2018) (finding <txtav-inc.com> confusingly similar to TXT); Zippo Manufacturing Co. v. Neatwork Communication, D2000-1128 (WIPO Jan. 4, 2001) (finding <avzippo.com> confusingly similar to ZIPPO). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and its sole apparent use has been to pass off as Complainant in order to promote competing services, to defraud users, or both. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., HDR Global Trading Ltd. v. Web Commerce Communications Ltd., Client Care, D2023-1948, supra (finding lack of rights or interests in similar circumstances); HDR Global Trading Ltd. v. Client Care / Web Commerce Communications Ltd., FA 2035750, supra (same); HDR Global Trading Ltd. v. Client Care / Web Commerce Communications Ltd., FA 2029680, supra (same); HDR Global Trading Ltd. v. Client Care / Web Commerce Communications Ltd., FA 1999287, supra (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name incorporating Complainant's mark. Respondent is using the domain name in what appears to be an attempt to pass off as Complainant and promote competing services, and has failed to come forward with any explanation for its selection or use of the domain name. Such circumstances are indicative of bad faith registration and use under the Policy. See, e.g., HDR Global Trading Ltd. v. Web Commerce Communications Ltd., Client Care, D2023-1948, supra (finding bad faith registration and use in similar circumstances); HDR Global Trading Ltd. v. Client Care / Web Commerce Communications Ltd., FA 2035750, supra (same); HDR Global Trading Ltd. v. Client Care / Web Commerce Communications Ltd., FA 2029680, supra (same); HDR Global Trading Ltd. v. Client Care / Web Commerce Communications Ltd., FA 1999287, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <av5-bitmex.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: July 27, 2023
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