HDR Global Trading Limited v. David Czinczenheim
Claim Number: FA2307002054675
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 <korbitmex.com>, registered with Domains Etc LLC.
The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on July 25, 2023; Forum received payment on July 25, 2023.
On July 28, 2023, Domains Etc LLC confirmed by e-mail to Forum that the <korbitmex.com> domain name is registered with Domains Etc LLC and that Respondent is the current registrant of the name. Domains Etc LLC has verified that Respondent is bound by the Domains Etc 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 August 1, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 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@korbitmex.com. Also on August 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 August 22, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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 states that it owns and operates a prominent cryptocurrency trading platform marketed to millions of consumers around the world in six languages. Complainant has been offering premier financial trading services in the field of digitized assets and cryptocurrencies since its inception in 2014. Today, Complainant’s business currently averages several hundreds of millions to a billion dollars or more of trading volume per day. Complainant is one of the largest cryptocurrency trading platforms in the world, servicing customers all over the world. Complainant has rights in the BITMEX through its registration in the European Union in 2018. The mark is registered elsewhere around the world and it is well known.
Complainant alleges that the disputed domain name is confusingly similar to its BITMEX mark because it incorporates the mark in its entirety and merely adds the term “kor” (which may refer to Korea) and the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name. Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services, or for a legitimate noncommercial or fair use. Instead, Respondent offers to sell the disputed domain name for a price in excess of out-of-pocket costs.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent offers to sell the disputed domain name for a price in excess of out-of-pocket costs. Respondent registered the disputed domain name through a privacy service and did not respond to Complainant’s cease and desist letters. Respondent had actual knowledge of Complainant’s rights in the BITMEX mark prior to registration of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark BITMEX and uses it to provide a cryptocurrency trading platform.
Complainant’s rights in its mark date back to 2018.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent offers to sell the disputed domain name for a price in excess of out-of-pocket costs.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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 disputed domain name incorporates Complainant’s BITMEX mark in its entirety and merely adds the term “kor” (which may refer to Korea) and the “.com” generic top-level domain (“gTLD”). Such changes are not sufficient to distinguish the domain name from the mark under Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable 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 Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) (“The domain name contains the mark in its entirety, with only the addition of the generic letters ‘sb’ and the digits ‘2018,’ plus the generic Top Level Domain (“gTLD”) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Respondent has no license or authorization to use Complainant’s mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by a domain name. 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). Here, the WHOIS information of record lists the registrant of the disputed domain name as “David Czinczenheim”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).
Respondent offers to sell the disputed domain name for an amount in excess of out-of-pocket costs. This does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Hewlett-Packard Co. v. High Performance Networks, Inc., FA 95083 (Forum July 31, 2000) (finding no rights or legitimate interests where the respondent registered the domain name with the intention of selling its rights); see also Reese v. Morgan, FA 917029 (Forum Apr. 5, 2007) (finding that the respondent’s willingness to sell a contested domain name for more than its out-of-pocket costs provided additional evidence that Respondent had no rights or legitimate interests in the contested domain name). Accordingly, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent offers to sell the disputed domain name for a price in excess of out-of-pocket costs. This may evince bad faith registration and use under Policy ¶ 4(b)(i). See Staples, Inc. v. lin yanxiao, FA 1617686 (Forum June 4, 2015) (“Respondent’s offering to sell the disputed domain name to a third party (in this case, the general public) supports a finding of bad faith registration and use.”); Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”). Thus the Panel finds bad faith registration and use under Policy ¶ 4(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 <korbitmex.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: August 22, 2023
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