HDR Global Trading Limited v. David Czinczenheim
Claim Number: FA2306002051362
Complainant is HDR Global Trading Limited (“Complainant”), represented by Mary D. Hallerman of SNELL & WILMER L.L.P, District of Columbia, USA. Respondent is David Czinczenheim (“Respondent”), France.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bmexcoin.com>, (‘the Domain Name’) registered with SNAPNAMES 12, LLC.
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 June 29, 2023; Forum received payment on June 29, 2023.
On June 29, 2023, SNAPNAMES 12, LLC confirmed by e-mail to Forum that the <bmexcoin.com> Domain Name is registered with SNAPNAMES 12, LLC and that Respondent is the current registrant of the name. SNAPNAMES 12, LLC has verified that Respondent is bound by the SNAPNAMES 12, 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 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 e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@bmexcoin.com. Also on July 3, 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 July 28, 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 is a major player in the cryptocurrency business and is the owner of the mark BMEX, registered, inter alia in Singapore, Malaysia and the Philippines for financial services since 2018.
The Domain Name registered in 2023 is confusingly similar to the Complainant’s BMEX mark containing it in its entirety and adding only the generic word ‘coin’ and a gTLD .com none of which prevents this confusing similarity.
The Respondent does not have any rights or legitimate interests in the Domain Name, is not commonly known by the Domain Name and is not authorised by the Complainant.
The Domain Name points to an inactive page and has been offered for sale generally for $1699 (US). This is not a legitimate use. It is registration and use in actual knowledge of the Complainant’s rights.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is a major player in the cryptocurrency business and is the owner of the mark BMEX, registered, inter alia in Singapore, Malaysia and the Philippines for financial services since 2018.
The Domain Name registered in 2023 has been offered for sale generally for $1699 (US).
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 BMEX mark (which is registered in Singapore, Malaysia and the Philippines for financial services since 2018), the descriptive term ‘coin’ and a gTLD .com.
The addition of a descriptive term and a gTLD does not negate confusing similarity between a domain name and a trade mark contained within it. See Wiluna Holdings LLC v Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD insufficient to distinguish a disputed domain name from a mark under Policy 4(a)(i)).
A gTLD 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 BMEX registered mark.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Respondent is not authorised by the Complainant and does not appear to be 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 Domain Name containing the Complainant’s mark has not been used but has been offered for sale for a sum well in excess of registration costs which is not a bona fide offering of goods or services or a legitimate non commercial or fair use. See Twentieth Century Fox Film Corporation v. Diego Ossa, FA1501001602016 (Forum Feb. 26, 2015).
The Respondent has not responded to this Complaint or rebutted the prima facie case evidenced by the Complainant as set out herein.
As such the Panel 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 containing the Complainant’s mark has been offered for sale generally for a sum in excess of costs of registration of the Domain Name. See Capital One Financial Corp. v. haimin xu, FA 1819364 (Forum Jan. 8, 2019) (“A general offer to sell a domain name can be evidence the respondent intended to make such an offer at the time it registered the name, supporting a finding of bad faith per Policy ¶ 4(b)(i).”).
The Respondent has not answered the Complaint and there is no explanation or evidence re the registration and use of the Domain Name. The Panel is entitled to draw inferences from this lack of an explanation re the inclusion of the Complainant’s distinctive mark in the Domain Name. The use of the generic word ‘coin’ in the Domain Name itself suggests that the name was registered with financial services in mind and because of the commonly used term ‘bitcoin’ more likely than not, also the cryptocurrency business in which the Complainant is a major player. There is no evidence as to why the Respondent included the Complainant’s distinctive mark in the Domain Name and the Panel holds that it is more likely than not that the Respondent had the Complainant and its BMEX mark in mind when the Respondent registered the Domain Name to sell for profit.
As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith and that the Complainant has satisfied the third limb of the Policy under s4 (b)(i).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bmexcoin.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: July 28, 2023
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