HDR Global Trading Limited v. Host Master / Transure Enterprise Ltd
Claim Number: FA2306002051365
Complainant is HDR Global Trading Limited (“Complainant”), represented by Mary D. Hallerman of SNELL & WILMER L.L.P, District of Columbia, USA. Respondent is Host Master / Transure Enterprise Ltd (“Respondent”), Delaware, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwbitmex.com>, registered with Above.com Pty Ltd..
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to Forum electronically on June 29, 2023; Forum received payment on June 29, 2023.
On July 4, 2023, Above.com Pty Ltd. confirmed by e-mail to Forum that the <wwbitmex.com> domain name is registered with Above.com Pty Ltd. and that Respondent is the current registrant of the names. Above.com Pty Ltd. has verified that Respondent is bound by the Above.com Pty Ltd. 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 6, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 26, 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@wwbitmex.com. Also on July 6, 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 August 1, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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, HDR Global Trading Limited, offers cryptocurrency trading services. Complainant has rights in the BITMEX mark through its registration of the mark with the World Intellectual Property Office (“WIPO”) (e.g., Reg. No. 1,514,704 registered October 10, 2019). Respondent’s <wwbitmex.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 “ww” and the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <wwbitmex.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the BITMEX mark. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Respondent uses the disputed domain name to display pay-per-click (“PPC”) advertisements.
Respondent registered and uses the <wwbitmex.com> domain name in bad faith. Respondent registered the disputed domain name to attract users with a false sense of association with Complainant. Additionally, Respondent uses the disputed domain name to display advertisements to competing and unrelated webpages. Also, Respondent registered the disputed 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, HDR Global Trading Limited, offers cryptocurrency trading services. Complainant has rights in the BITMEX mark through its registration of the mark with the WIPO (e.g., Reg. No. 1,514,704 registered October 10, 2019). Respondent’s <wwbitmex.com> domain name is confusingly similar to Complainant’s mark because it incorporates the BITMEX mark in its entirety and adds the letters “ww” and the “.com” generic top-level domain (“gTLD”).
Respondent registered the <wwbitmex.com> domain name on December 27, 2022.
Respondent does not have rights or legitimate interests in the <wwbitmex.com> domain name. Respondent uses the disputed domain name to display pay-per-click (“PPC”) advertisements.
Respondent registered and uses the <wwbitmex.com> domain name 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 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 has rights in the BITMEX mark under Policy ¶ 4(a)(i) based upon the registration of the mark with the WIPO. See 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 <wwbitmex.com> domain name is identical to Complainant’s BITMEX mark because it incorporates the BITMEX mark in its entirety and adds the letters “ww” and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <wwbitmex.com> domain name since Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the BITMEX mark. WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). In addition, a lack of authorization to use a complainant’s mark may also show that a respondent is not commonly known by the disputed domain name. See Bittrex, Inc. v. Operi Manaha, FA 1815225 (Forum Dec. 10, 2018) (concluding that the respondent was not commonly known by the <appbittrex.com> domain name where the WHOIS information listed Respondent as “Operi Manaha,” and nothing else in the record suggested Respondent was authorized to use the BITTREX mark.). The WHOIS information for the disputed domain name lists the registrant as “Host Master / Transure Enterprise Ltd”. Complainant has not licensed or otherwise authorized Respondent to use Complainant’s BITMEX mark. Therefore, Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent’s use of <wwbitmex.com> also does not qualify as a bona fide offering or legitimate noncommercial or fair use. The disputed domain name resolves to a site containing pay-per-click hyperlinks and advertisements. Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering. See Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees). Here, Complainant provides a screenshot in which third-party links are prominent. Therefore, Respondent does not have a legitimate interest in the disputed domain name for purposes of Policy ¶ 4(a)(ii).
Respondent registered and uses the <wwbitmex.com> domain name in bad faith under Policy ¶ 4(b)(iv) because Respondent attempts to take advantage of confusion with Complainant’s well-known mark to attract Internet users to its website for commercial gain. See Carey Int’l, Inc. v. Kogan, FA 486191 (Forum July 29, 2005) (“[T]he Panel finds that Respondent is capitalizing on the confusing similarity of its domain names to benefit from the valuable goodwill that Complainant has established in its marks. Consequently, it is found that Respondent registered and used the domain names in bad faith under Policy ¶ 4(b)(iv).”). Also, past panels have found bad faith pursuant to Policy ¶ 4(b)(iv) when a respondent used a confusingly similar domain name to attract Internet users to a webpage that displays sponsored links. See Vivint, Inc. v. Online Management, FA1403001549084 (Forum Apr. 23, 2014) (holding that the respondent had registered and used the disputed domain name in bad faith according to Policy ¶ 4(b)(iv) where the disputed domain name resolved to a parking page that featured no content besides sponsored advertisements and links).
Respondent had actual knowledge of Complainant's rights in the BITMEX mark. Therefore, Respondent registered the <wwbitmex.com> domain name in bad faith under 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 "actual knowledge of Complainant's mark when registering the disputed domain name").
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwbitmex.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: August 15, 2023
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