ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION dYdX Foundation v. btc Case No. D2023-5046 1. The Parties The Complainant is dYdX Foundation, Switzerland, represented by SafeNames Ltd., United Kingdom. The Respondent is btc, Singapore. 2. The Domain Names and Registrar The disputed domain names, and , are registered with Alibaba.com Singapore E-Commerce Private Limited (the "Registrar"). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on December 4, 2023. On December 5, 2023, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On December 6, 2023, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent (N/A) and contact information in the Complaint. The Center sent an email communication to the Complainant on December 7, 2023, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on December 12, 2023. The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules"). In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 13, 2023. In accordance with the Rules, paragraph 5, the due date for Response was January 2, 2024. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on January 10, 2024. The Center appointed Edoardo Fano as the sole panelist in this matter on January 16, 2024. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and page 2 Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. The Panel has not received any requests from the Complainant or the Respondent regarding further submissions, waivers or extensions of deadlines, and the Panel has not found it necessary to request any further information from the Parties. Having reviewed the communication records in the case file provided by the Center, the Panel finds that the Center has discharged its responsibility under the Rules, paragraph 2(a), "to employ reasonably available means calculated to achieve actual notice to [the] Respondent". Therefore, the Panel shall issue its Decision based upon the Complaint, the Policy, the Rules and the Supplemental Rules and without the benefit of a response from the Respondent. The language of the proceeding is English, being the language of the Registration Agreements, as per paragraph 11(a) of the Rules. 4. Factual Background The Complainant is dYdX Foundation, a Swiss company operating as a leading decentralized exchange for cryptocurrency products, and owning several trademark registrations for DYDX, among which the following ones: - European Union Trade Mark Registration No. 018575296 for DYDX, registered on May 31, 2022; - Swiss Trademark Registration No. 784345 for DYDX, registered on July 20, 2022. The Complainant operates on the Internet since 2017 at the website "www.dydx.exchange". The Complainant provided evidence in support of the above. According to the WhoIs records, the disputed domain names were registered on July 29, 2023, and they resolve to a website very similar to the Complainant's official website, purportedly providing the same services as the Complainant and reproducing the Complainant's trademark and logo. 5. Parties' Contentions A. Complainant The Complainant contends that it has satisfied each of the elements required under the Policy for a transfer of the disputed domain names. Notably, the Complainant states that the disputed domain names are confusingly similar to its trademark DYDX. The Complainant asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain names since it has not been authorized by the Complainant to register the disputed domain names or to use its trademark within the disputed domain names, it is not commonly known by the disputed domain names and it is not making either a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain names. The disputed domain names resolve to a website very similar to the Complainant's official website, purportedly providing the same services as the Complainant and reproducing the Complainant's trademark and logo. The Complainant submits that the Respondent has registered the disputed domain names in bad faith, since the Complainant's trademark DYDX is distinctive. Therefore, the Respondent targeted the Complainant's page 3 trademark at the time of registration of the disputed domain names and the Complainant contends that the use of the disputed domain names to resolve to a website purportedly providing the same services as the Complainant, namely online trading, reproducing the Complainant's trademark and logo and impersonating the Complainant, qualifies as bad faith registration and use. B. Respondent The Respondent has made no reply to the Complainant's contentions and is in default. In reference to paragraphs 5(f) and 14 of the Rules, no exceptional circumstances explaining the default have been put forward or are apparent from the record. A respondent is not obliged to participate in a proceeding under the Policy, but if it fails to do so, reasonable facts asserted by a complainant may be taken as true, and appropriate inferences, in accordance with paragraph 14(b) of the Rules, may be drawn. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 4.3. 6. Discussion and Findings Paragraph 4(a) of the Policy lists three elements, which the Complainant must satisfy in order to succeed: (i) the disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain names; and (iii) the disputed domain names have been registered and are being used in bad faith. A. Identical or Confusingly Similar It is well accepted that the first element functions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the Complainant's trademark and the disputed domain names. WIPO Overview 3.0, section 1.7. Based on the available record, the Panel finds the Complainant has shown rights in respect of a trademark or service mark for the purposes of the Policy. WIPO Overview 3.0, section 1.2.1. The Panel finds the entirety of the mark DYDX is reproduced within the disputed domain names. Accordingly, the disputed domain names are confusingly similar to the mark for the purposes of the Policy. WIPO Overview 3.0, section 1.7. While the addition of other terms, here "vip" and a hyphen, may bear on assessment of the second and third elements, the Panel finds the addition of such term and element does not prevent a finding of confusing similarity between the disputed domain names and the mark for the purposes of the Policy. WIPO Overview 3.0, section 1.8. It is also well accepted that a Top-Level Domain ("TLD"), in this case ".com", is typically ignored when assessing the similarity between a trademark and a domain name. WIPO Overview 3.0, section 1.11.1. Based on the available record, the Panel finds the first element of the Policy has been established. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances in which the respondent may demonstrate rights or legitimate interests in a disputed domain name. page 4 While the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of "proving a negative", requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain names. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview 3.0, section 2.1. Having reviewed the present record, the Panel finds the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain names. The Respondent has not rebutted the Complainant's prima facie showing and has not come forward with any relevant evidence demonstrating rights or legitimate interests in the disputed domain names such as those enumerated in the Policy or otherwise. The disputed domain names resolve to a website very similar to the Complainant's official website, purportedly providing the same services as the Complainant and reproducing the Complainant's trademark and logo. Panels have held that the use of a domain name for illegal activity, here impersonation/passing off, can never confer rights or legitimate interests on a respondent. WIPO Overview 3.0, section 2.13.1. Moreover, the Panel finds that the composition of the disputed domain names, both of them incorporating the Complainant's trademark DYDX, carries a risk of implied affiliation as it effectively impersonates or suggests sponsorship or endorsement by the Complainant. WIPO Overview 3.0, section 2.5.1. Based on the available record, the Panel finds the second element of the Policy has been established. C. Registered and Used in Bad Faith The Panel notes that for the purposes of paragraph 4(a)(iii) of the Policy, paragraph 4(b) of the Policy establishes circumstances, in particular but without limitation, that if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. Paragraph 4(b) of the Policy sets out a list of non-exhaustive circumstances that may indicate that a domain name was registered and used in bad faith, but other circumstances may be relevant in assessing whether a respondent's registration and use of a domain name is in bad faith. WIPO Overview 3.0, section 3.2.1. In the present case, regarding the registration in bad faith of the disputed domain names, the reputation of the Complainant's trademark in the field of online trading is clearly established. The Panel finds that the Respondent knew of the Complainant and deliberately registered the confusingly similar disputed domain names, especially because they resolve to a website very similar to the Complainant's official website, purportedly providing the same services as the Complainant and reproducing the Complainant's trademark and logo. As regards the use in bad faith of the disputed domain names, panels have held that the use of a domain name for illegal activity, here impersonation/passing off, constitutes bad faith. WIPO Overview 3.0, section 3.4. Furthermore, the Panel considers that the nature of the inherently misleading disputed domain names, both of them including the Complainant's trademark DYDX in its entirety with the mere addition of the terms "vip" and a hyphen, further supports a finding of bad faith. WIPO Overview 3.0, section 3.2.1. Having reviewed the record, the Panel finds the Respondent's registration and use of the disputed domain names constitutes bad faith under the Policy. Based on the available record, the Panel finds the third element of the Policy has been established. page 5 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain names and be transferred to the Complainant. /Edoardo Fano/ Edoardo Fano Sole Panelist Date: January 22, 2024
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