DECISION

 

Frances Cranston v. A AA

Claim Number: FA2401002079453

 

PARTIES

Complainant is Frances Cranston ("Complainant"), Australia. Respondent is A AA ("Respondent"), Singapore.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <digitalx.cc> ("Domain Name"), registered with NameSilo, LLC.

 

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.

 

Nicholas J.T. Smith as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on January 17, 2024; Forum received payment on January 17, 2024.

 

On January 17, 2024, NameSilo, LLC confirmed by e-mail to Forum that the <digitalx.cc> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 January 19, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 8, 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@digitalx.cc. Also on January 19, 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 response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.

 

On February 9, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Nicholas J.T. Smith 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 cancelled.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant, Frances Cranston, is the chief risk officer for DigitalX, an Australian listed company that operates a cryptocurrency exchange from its website at www.digitalx.com.  DigitalX has registered a trademark consisting of the word Digital and a X device with IP Australia (e.g., Reg. No. 2,311,915, registered June 13, 2023). Respondent's <digitalx.cc> domain name is identical or confusingly similar to Complainant's mark and domain name.

 

Respondent has no rights or legitimate interests in the <digitalx.cc> domain name and is using the Domain Name in bad faith. Respondent is using the Domain Name to present legitimacy to a prospectus investor, who if they sign up to the exchange will lose all their money as it is fraudulent. The Domain Name resolves to a website that reproduces the DigitalX logo and makes the factually incorrect statement that "DigitalX operates under FINCEN in the United States and the FCA, CySEC and ASIC in other countries".

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant does not provide sufficient evidence of trademark rights for the purposes of satisfying Policy ¶ 4(a)(i). 

 

DISCUSSION

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

Policy Paragraph 4(a)(i) requires a Complainant to establish trademark rights in a mark as a basis for succeeding in a Complaint. This is a threshold standing requirement that must be established, regardless of any activity conducted by a respondent. The Panel notes that absent such a requirement it would be possible for third parties, absent any rights in a mark, to obtain transfer or cancellation of a Domain Name merely by filing a Complaint under the Policy.

 

Complainant states (but provides no evidence proving this) that he is an employee of an entity known as DigitalX, an Australian listed company that holds a registered trademark that corresponds to the Domain Name. While, on its face, the Complainant's employer may have trademark rights in a mark corresponding to the Domain Name, the Complainant himself does not (and the Complaint provides no evidence that he holds rights independent of his employer) and, regardless of the alleged fraud being committed from the website at the Domain Name, the Policy does not provide a panel with the jurisdiction to order transfer or cancellation of the Domain Name in the absence of Policy Paragraph 4(a)(i) being satisfied.  The Panel notes that this decision is without prejudice to any refiled complaint being filed by any other party, including the Complainant's employer, who as noted above, on its face does have rights in a corresponding trademark.  

 

As the Panel has concluded that Complainant has not satisfied Policy ¶ 4(a)(i) because it has not established trademark rights, the Panel declines to analyze the other two elements of the Policy.  See Netsertive, Inc. v. Ryan Howard / Howard Technologies, Ltd., FA 1721637 (Forum Apr. 17, 2017) (finding that because the complainant must prove all three elements under the Policy, the complainant's failure to prove one of the elements makes further inquiry into the remaining element unnecessary); see also Wasatch Shutter Design v. Duane Howell / The Blindman, FA 1731056 (Forum June 23, 2017) (deciding not to inquire into the respondent's rights or legitimate interests or its registration and use in bad faith where the complainant could not satisfy the requirements of Policy ¶ 4(a)(i)).

 

DECISION

Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

 

Accordingly, it is Ordered that the <digitalx.cc> domain name REMAIN WITH Respondent.

 

 

 

Nicholas J.T. Smith, Panelist

Dated: February 9, 2024