The Complainant is FXCM Global Services, LLC, United States of America (“United States”), represented by SafeNames Ltd., United Kingdom.
The Respondent is Ning Li, China.
The disputed domain name <fxcm-china.com> is registered with GoDaddy.com, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 17, 2020. On September 18, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 18, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 21, 2020 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 September 21, 2020.
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 September 22, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 12, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 13, 2020.
The Center appointed Sok Ling MOI as the sole panelist in this matter on November 4, 2020. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Complainant, founded in 1999, is a retail provider of online foreign exchange (“Forex”) trading, CFD trading and related services. The Complainant provides global traders with innovative trading tools (such as one-click order execution) and high-quality training educators. The Complainant has offices located in Germany, Australia, France and Hong Kong, China, and offers its services in various languages including English, Chinese, German, French and Italian. The Complainant predominantly operates from its main website, “www.fxcm.com” and through its mobile app.
The Complainant uses the brand name FXCM to identify and market its services internationally, and has registered several domain names that feature the FXCM trade mark, including <fxcm.asia>, <fxcm.blog>, <fxcm.broker> and <fxcm.capital>.
The Complainant also owns the following trade mark registrations for FXCM:
|
Jurisdiction |
Trade Mark |
Class |
Registration No. |
Registration Date |
|
United States |
FXCM |
36 |
2620953 |
September 17, 2002 |
|
European Union |
FXCM |
35, 36, 41 |
3955523 |
November 3, 2005 |
|
Australia |
FXCM |
36, 41 |
1093998 |
December 3, 2004 |
The disputed domain name <fxcm-china.com> was registered on June 13, 2020. According to the evidence submitted by the Complainant, the disputed domain name resolves to a website containing adult content images with several links leading to contents of a pornographic nature.
The Complainant contends that the disputed domain name is confusingly similar to its FXCM trade mark. The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name has been registered and is being used in bad faith.
The Complainant requests the transfer of the disputed domain name.
The Respondent did not reply to the Complainant’s contentions.
Paragraph 4(a) of the Policy directs that a complainant must prove each of the following three elements to obtain an order for the disputed domain name to be cancelled or transferred:
(i) the disputed domain name is identical or confusingly similar to a trade mark or service mark in which the complainant has rights;
(ii) the respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
On the basis of the arguments and evidence introduced by the Complainant, the Panel concludes as follows:
The Panel accepts that the Complainant has rights in FXCM by virtue of its use and registration of the same as a trade mark.
The disputed domain name incorporates the Complainant’s FXCM trade mark in its entirety. The addition of the geographical term “china” does not dispel the confusing similarity between the disputed domain name and the Complainant’s trade mark. The addition of the generic Top-Level Domain (“gTLD”) “.com” does not impact the analysis of whether the disputed domain name is identical or confusingly similar to the Complainant’s trade mark in this case.
Consequently, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s FXCM trade mark.
Accordingly, the Complainant has satisfied the requirements of the first element under paragraph 4(a) of the Policy.
Under paragraph 4(a)(ii) of the Policy, a complainant bears the burden of establishing that the respondent lacks rights or legitimate interests in the disputed domain name. However, once the complainant makes a prima facie showing under paragraph 4(a)(ii) of the Policy, the burden of production shifts to the respondent to establish its rights or legitimate interests in the disputed domain name by demonstrating any of the following, without limitation, under paragraph 4(c) of the Policy:
(i) before any notice to it of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent has been commonly known by the disputed domain name, even if it has acquired no trade mark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
(See Taylor Wimpey PLC, Taylor Wimpey Holdings Limited v. honghao Internet foshan co, ltd, WIPO Case No. D2013-0974.)
The Complainant has confirmed that the Respondent is not in any way affiliated with the Complainant or otherwise authorized or licensed to use the FXCM trade mark or to seek registration of any domain name incorporating the FXCM trade mark. The Respondent appears to be an individual by the name of Ning Li. There is no evidence suggesting that the Respondent is commonly known by the disputed domain name or that the Respondent has any rights in the term “fxcm”.
According to the evidence submitted by the Complainant, the disputed domain name resolves to a website containing adult content images with several links to supposed contents of a pornographic nature. The consensus view of previous UDRP panels is that use of a domain name to post parking and landing pages or pay-per--click links may be permissible in some circumstances, but would not of itself confer rights or legitimate interests arising from a “bona fide offering of goods or services” or from “legitimate noncommercial or fair use” of the domain name.
The Panel is satisfied that the Complainant has made out a prima facie case showing that the Respondent lacks rights or legitimate interests in the disputed domain name. The burden of production thus shifts to the Respondent to establish its rights or legitimate interests in the disputed domain name. Since the Respondent did not file a response to the Complaint and has thus failed to offer any explanation for its registration of the disputed domain name, the prima facie case has not been rebutted.
Consequently, the Panel finds that the Respondent lacks rights or legitimate interests in the disputed domain name.
Accordingly, the Complainant has satisfied the requirements of the second element under paragraph 4(a) of the Policy.
Paragraph 4(b) of the Policy sets out four circumstances, which, without limitation, shall be evidence of the registration and use of a disputed domain name in bad faith, namely:
(i) circumstances indicating that the respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trade mark or service mark or to a competitor of the complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the disputed domain name; or
(ii) the respondent has registered the disputed domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the respondent’s website or location.
By virtue of its extensive use and advertising since 1999, the Complainant and its trade mark FXCM enjoy a reputation worldwide and a strong online presence. In this day and age of the Internet and advancement in information technology, the reputation of brands and trade marks transcends national borders. As such, a cursory Internet search would have disclosed the FXCM trade mark and the extensive use thereof by the Complainant. A strong presumption arises therefore that the Respondent was aware of the existence of the Complainant and its trade mark at the time of registering the disputed domain name. Registration of a domain name that incorporates a complainant’s well-known trade mark suggests opportunistic bad faith.
According to the evidence submitted by the Complainant, the disputed domain name resolves to a website containing adult content images with several links leading to contents of a pornographic nature.
UDRP panels have long recognized that the use of another’s trademark in a domain name to divert consumers to a pornographic website is evidence of bad faith, regardless of the Respondent’s motivation. See Eli Lilly and Company v. Domain Magic, LLC, WIPO Case No. D2007-0144.
Furthermore, the consensus view of previous UDRP panels is that a domain name registrant is normally deemed responsible for content appearing on a website at its domain name, even if such registrant may not be exercising direct control over such content — for example, in the case of advertising links appearing on an “automatically” generated basis. The Panel notes the presumption that the Respondent or a third party stands to profit or make a “commercial gain” from advertising revenue by such an arrangement trading on third-party trade marks. In the Panel’s opinion, such links clearly seek to capitalise on the trade mark value of the Complainant’s FXCM trade mark resulting in misleading diversion. The content appearing on the Respondent’s said website also serves to tarnish the Complainant’s trade mark. Such use of the disputed domain name cannot be in good faith. The Panel therefore determines that the Respondent has intentionally attempted to attract for commercial gain Internet users to its websites by creating a likelihood of confusion with the Complainant’s mark as to source, sponsorship, affiliation, or endorsement of the Respondent’s website. As such, the Panel finds that the circumstances referred to in paragraph 4(b)(iv) of the Policy are applicable to the present case.
Furthermore, efforts to send written notice of the proceedings to the Respondent at the physical address provided by the Respondent to the Registrar (and in turn to the Center) failed, which suggests that the Respondent had probably provided false contact details.
In view of the above finding that the Respondent does not have rights or legitimate interests in the disputed domain name, and taking into account all the circumstances, the Panel concludes that the Respondent has registered and is using the disputed domain name in bad faith.
Accordingly, the Complainant has satisfied the requirements of the third element under paragraph 4(a) of the Policy.
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 name <fxcm-china.com> be transferred to the Complainant.
Sok Ling MOI
Sole Panelist
Date: November 28, 2020