HDR Global Trading Limited v. pius polocha
Claim Number: FA2307002054685
Complainant is HDR Global Trading Limited (“Complainant”), represented by Mary D. Hallerman of SNELL & WILMER L.L.P, District of Columbia, USA. Respondent is pius polocha (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bitmextrading.xyz>, registered with Atak Domain Bilgi Teknolojileri A.S.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to Forum electronically on July 25, 2023. Forum received payment on July 25, 2023.
On July 27, 2023, Atak Domain Bilgi Teknolojileri A.S. confirmed by e-mail to Forum that the <bitmextrading.xyz> domain name is registered with Atak Domain Bilgi Teknolojileri A.S. and that Respondent is the current registrant of the name. Atak Domain Bilgi Teknolojileri A.S. has verified that Respondent is bound by the Atak Domain Bilgi Teknolojileri A.S. 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 28, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 17, 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@bitmextrading.xyz. Also on July 28, 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 18, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury 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 prominent cryptocurrency trading platform marketed to millions of consumers around the world in six languages. Complainant’s operation, founded in November 2014, has become one of the most recognizable names in the cryptocurrency field, with its website at “www.bitmex.com” attracting tens of millions of page views per month. Through its wholly owned subsidiary HDR SG PTE. LTD., Complainant owns the distinctive and well-known trademark BITMEX, and substantially related marks, used in connection with financial trading platform services throughout the world. The <bitmextrading.xyz> domain name is virtually identical or confusingly similar to Complainant’s mark.
Respondent has no rights or legitimate interests in the <bitmextrading.xyz> domain name. Respondent is not sponsored or endorsed by Complainant and Complainant has never authorized or licensed Respondent to use Complainant’s BITMEX mark. The domain name resolves to a website displaying the BITMEX mark and purporting
to offer cryptocurrency trading services. Respondent is not commonly known by the domain name and is not using it in connection with any bona fide offering of goods and services or for any legitimate or fair use. Instead, Respondent is passing itself off as Complainant and offering competing services.
Respondent registered the <bitmextrading.xyz> domain name in bad faith with actual knowledge of Complainant’s rights in the BITMEX mark and is using it in bad faith in an attempt to confuse users as to the source of the domain name. Respondent offers competing services to disrupt Complainant’s business and attract users for commercial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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”).
Identical and/or Confusingly Similar
Complainant has shown that, through its wholly owned subsidiary HDR SG PTE. LTD., it has rights in the BITMEX mark based upon numerous registrations, including with the European Union Intellectual Property Office (“EUIPO”), (e.g. Reg. No. 016,462,327, registered August 16, 2017). The Panel finds Respondent’s <bitmextrading.xyz> domain name to be confusingly similar to Complainant’s mark as it incorporates the BITMEX mark in its entirety, adding the descriptive term “trading”, which does not distinguish the domain name from the mark, and the inconsequential top-level domain (“TLD”) “.xyz”, which may be ignored.
Complainant has established this element.
Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in the domain name for purposes of paragraph 4(a)(ii) of the Policy, i.e.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <bitmextrading.xyz> domain name was registered on June 13, 2023, many years after Complainant has shown that its BITMEX mark had become famous. It resolves to a website displaying the BITMEX mark, coupled with the word “trade”, and purporting to offer cryptocurrency trading services.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that he does have rights or legitimate interests in the <bitmextrading.xyz> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA 1849706 (Forum July 17, 2019). Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s famous BITMEX mark when Respondent registered the <bitmextrading.xyz> domain name and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with Complainant’s mark as to the source of Respondent’s website and of the goods or services promoted on that website. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).
Complainant has established this element.
DECISION
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 <bitmextrading.xyz> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: August 19, 2023
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