DECISION

 

BitPay, Inc. v. Ebuka Nweje / EflexTech

Claim Number: FA2401002079407

 

PARTIES

Complainant is BitPay, Inc. ("Complainant"), represented by Ashley N. Klein of Morris, Manning & Martin, LLP, Georgia, USA. Respondent is Ebuka Nweje / EflexTech ("Respondent"), Nigeria.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <thebitpaycapital.com>, registered with PSI-USA, Inc. dba Domain Robot.

 

PANEL

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.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on January 16, 2024; Forum received payment on January 16, 2024.

 

On January 17, 2024, PSI-USA, Inc. dba Domain Robot confirmed by e-mail to Forum that the <thebitpaycapital.com> domain name is registered with PSI-USA, Inc. dba Domain Robot and that Respondent is the current registrant of the name. PSI-USA, Inc. dba Domain Robot has verified that Respondent is bound by the PSI-USA, Inc. dba Domain Robot 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 January 17, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 6, 2024 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@thebitpaycapital.com. Also on January 17, 2024, 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 formal response from Respondent, Forum transmitted to the parties a Notification of Respondent Default. Respondent did however send an email to Forum, see below.

 

On February 7, 2024, 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant states that it is the world's largest Bitcoin payment processor and an award-winning, nationally-recognized leader in cryptocurrency and blockchain technology, including blockchain retail, ecommerce, billing, and donation tools using Bitcoin and Bitcoin Cash. Complainant has been continuously providing cryptocurrency services to merchants since at least 2011. Complainant's services provide merchants with the ability, among other things, to accept cryptocurrency from their customers. Complainant uses the BITPAY mark in connection with these services. Since its inception, Complainant has processed well-over $5 billion US Dollars in payments for thousands of businesses worldwide, and it has successfully partnered with Mastercard to provide the first ever BITPAY-branded prepaid card for cryptocurrency users in the United States, and has also partnered with Apple Wallet, Google Pay, and Samsung Pay to provide merchant services. Complainant has rights in the BITPAY mark through its registration in the United States in 2015.

 

Complainant alleges that the disputed domain name is identical or confusingly similar to its BITPAY mark as it incorporates the mark in its entirety, merely adding the generic/descriptive terms "the" and "capital" along with the ".com" generic top-level domain ("gTLD").

 

According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its BITPAY mark in any way. Respondent does not use the disputed domain name for a bona fide offering of goods or services, nor for a legitimate noncommercial or fair use. Instead, the resolving website displays Complainant's mark and logo, and is used to bate customers to purchase a bitcoin investment plan that promises customers an unrealistic return on investment of up to 300%. Respondent also bates customers into opening an account by promising a complimentary deposit of up to $10,000. However, after the user purchases an investment or pays for an investment services, the funds are longer accessible and no profits are available for withdrawal. The resolving website is replete with grammatical and typographical errors and broken links that belie any claim of credibility. The resolving website includes a physical address that is a single family home in London and not an address associated with a business; it also includes a phone number which does not appear to be associated with an actual business.

 

Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith, in furtherance of a fraudulent scheme. Respondent registered the disputed domain name with actual knowledge of Complainant's rights in the BITPAY mark.

 

B. Respondent

Respondent failed to submit a formal Response in this proceeding. In its email to the Forum, Respondent states, in pertinent part: "I have read your email and I will stop the domain".

 

FINDINGS

For the reasons set forth below, the Panel will not make any findings of fact.

 

DISCUSSION

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.

 

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."

 

The Panel interprets Respondent's email to the Forum as consent to transfer the disputed domain name. Thus, in the present case, the parties have both asked for the domain name to be transferred to the Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.

 

See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also Boehringer Ingelheim Int'l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) ("[U]nder such circumstances, where Respondent has agreed to comply with Complainant's request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.").

 

Identical and/or Confusingly Similar

For the reasons set forth above, the Panel will not analyze this element of the Policy.

 

Rights or Legitimate Interests

For the reasons set forth above, the Panel will not analyze this element of the Policy.

 

Registration and Use in Bad Faith

For the reasons set forth above, the Panel will not analyze this element of the Policy.

 

DECISION

Given the common request of the Parties, it is Ordered that the <thebitpaycapital.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist

Dated: February 7, 2024