The Complainant is Rodeler Ltd. of Limassol, Cyprus, represented by Herzog, Fox & Neeman, Israel.
The Respondent is BFMM Limited of London, United Kingdom of Great Britain and Northern Ireland / Ruben Hazi, Options of Brussels, Belgium.
The disputed domain name <fx24option.com> (the “Disputed Domain Name”) is registered with GoDaddy.com, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 19, 2015. On May 20, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On May 21, 2015, 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on June 1, 2015.
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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 3, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was June 23, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 24, 2015.
The Center appointed Hub J. Harmeling as the sole panelist in this matter on July 10, 2015. 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 has operated a binary option trading website under the brand name “24Option” and uses the domain name <24option.com> since 2010. With over 5.2 million users accessing the website on a monthly basis, the Complainant is active worldwide in the market of online binary option trading platforms and operates one of the best known and most frequently used platforms.
The Complainant owns an international trademark registration for 24OPTION.COM registered on June 7, 2013.
On March 23, 2015 the Complainant’s representative wrote to the Respondent drawing the Respondent’s attention to the Complainant’s rights and requesting the Respondent to cease the operation of the website located at “www.fx24option.com”, to transfer to the Complainant the rights in the Disputed Domain Name and to refrain from using the Complainant’s trademarks, trade names, brands, designs or copying the “look and feel” of the Complainant’s website.
The Respondent registered the Disputed Domain Name on January 26, 2015 using a privacy protection service that masks its true identity reflected in the WhoIs. The address information retrieved by the Registrar as provided to the Center appears incomplete as well.
The Complainant’s contentions include the following.
The Complainant claims rights in the trademark 24OPTION.COM, which it has registered in several jurisdictions. The Complainant contends that the Disputed Domain Name is confusingly similar to the trademarks and registered domain name of the Complainant. The Respondent has, according to the Complainant, no rights or legitimate interest in respect of the Disputed Domain Name. The Complainant further contends that the Disputed Domain Name is registered and is being used in bad faith.
The Complainant states that a cease, desist and transfer communication was sent to the Respondent on March 23, 2015.
The Complainant has cited a number of previous decisions under the Policy that it considers to be supportive of its case.
The Complainant requests the transfer to itself of the Disputed Domain Name.
The Respondent did not reply to the Complainant’s contentions, and the Center subsequently notified the Respondent’s default on June 24, 2015.
Paragraph 4(a) of the Policy states that the Respondent is required to submit to a mandatory administrative proceeding in the event that a complainant asserts to the applicable provider, in compliance with the Rules, that:
“(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect of the domain name; and
(iii) your domain name has been registered and is being used in bad faith.”
The Complainant has made the relevant assertions as above. The dispute is properly within the scope of the Policy and the Panel has jurisdiction to decide the dispute.
In the exercise of its power to undertake limited factual enquiries into matters of public record (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 4.5), the Panel has visited the website to which the Disputed Domain name resolves and notes that it is presently used similarly to the Complainant’s website except in another language.
The Disputed Domain Name is <fx24option.com>. The Complainant seeks to prove that it is confusingly similar to trademarks registered in the Complainant’s name, such as, most importantly, the word mark 24OPTION.COM.
The difference between the Disputed Domain Name and the trademarks registered by the Complainant is limited to the prefix “fx”. The abbreviation “fx” for forex is commonly used as a generic acronym for foreign exchange of currency. Both the Respondent and the Complainant offer binary trading options relating to the exchange of foreign currency. As such, the prefix “fx” is descriptive of these services. In view of the confusion resulting from the incorporation of the trademark 24OPTION.COM into the Disputed Domain Name and the merely descriptive character of the prefix “fx” added to the Disputed Domain Name, the Panel finds that the Disputed Domain Name is confusingly similar to the registered trademark 24OPTION.COM for the purposes of paragraph 4(a)(i) of the Policy (Telstra Corporation Limited v. Ozurls, WIPO Case No. D2001-0046).
The Complainant contends that the Respondent does not have rights or legitimate interests in respect of the Disputed Domain Name.
As evidenced by previous decisions under the Policy, the Complainant has to demonstrate prima facie that the Respondent does not have rights or legitimate interests in respect of the Disputed Domain Name. Once the Panel is satisfied that this is indeed the case, paragraph 4(c) of the Policy provides for the Respondent to counter the Complainant’s assertion (WIPO Overview 2.0, paragraph 2.1).
The Complainant contends that the Respondent has never been licensed or authorized to use the 24OPTION.COM marks. The Panel has noted that the Complainant’s rights in its trademarks precede the Respondent’s registration of the Disputed Domain Name. The Panel is moreover not aware of any trademark registration for the term “fx24option” in the name of the Respondent.
Furthermore, the Panel observes that both the Complainant and the Respondent are active in an identical and focused trading activity in which, as elaborated by the Complainant, only a number of businesses operate a reliable and formally registered trading platform. The Complainant contends to be a leading player, which the Panel finds confirmed by a first and high level enquiry into publicly available information. The Respondent’s use of the Disputed Domain Name to offer an identical service as the Complainant copying the look and feel of the Complainant’s website cannot be a bona fide offering of services under the Policy.
In addition, the Respondent appears to have obscured direct access to its contact details as the owner of the Disputed Domain Name as contended by the Complainant and as evidenced by the verification process conducted by the Center, which disclosed that (i) registration is held through multiple proxies and that (ii) the address that the Respondent has submitted to the Registrar, upon further verification by the Panel, appears to be non-existent.
In the absence of a response to the Complaint after the Respondent had been properly notified, and in view also of the above findings by the Panel, the Panel finds that the Complainant has prima facie demonstrated that the Respondent does not have rights or legitimate interests in respect of the Disputed Domain Name for the purposes of paragraph 4(a)(ii) of the Policy.
The Complainant contends that the Respondent has registered and used the Disputed Domain Name in bad faith. Paragraph 4(b) of the Policy lists four alternative circumstances, without limitation, that shall be evidence of the registration and use of a domain name in bad faith by the Respondent. The onus of proof rests upon the Complainant. The Complainant refers, without limitation, to paragraph 4(b)(iv), which states that a registration is made in bad faith when:
“by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”
The Complainant contends to have successfully operated the website “www.24option.com” since 2010, and at the time the Respondent registered the Disputed Domain Name, the Complainant owned a number of trademark registrations for the mark 24OPTION.COM. The Complainant has actively advertised its operations worldwide, amongst others by the sponsorship of the world-renowned football club Juventus. In view of the limited scope of this business section, in which both the Respondent and the Complainant appear to be active, its international reach and the position held by the Complainant as one of the leading business in it, the Panel finds that the Complainant has sufficiently demonstrated that the Respondent registered and used the Disputed Domain Name in bad faith.
This finding is further supported by the striking similarity in the presentation (“look and feel”) of the website operated under the Disputed Domain Name by the Respondent and the Complainant’s website since 2010. In addition, the fact that the Respondent has de facto obscured accessibility to its identity and/or true contact details further supports this finding of the Panel.
The Panel is of the view that Internet users may be led to think that the Disputed Domain Name was connected with the Complainant, as a result of which such users sign up and pay for registration on the Respondent’s website. The above conclusion is moreover supported by absence of any apparent rights or legitimate interests by the Respondent in the Disputed Domain Name, and its failure to respond to a cease-and-desist letter (Converse Inc. v. Perkins Hosting, WIPO Case No. D2005-0350).
Therefore, the Panel finds that the Respondent has registered and used the Disputed Domain Name in bad faith.
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 <fx24option.com> be transferred to the Complainant.
Hub J. Harmeling
Sole Panelist
Date: August 3, 2015