The Complainant is Swissquote Group Holding S.A. of Gland, Switzerland, represented by Nameshield, France.
The Respondent is xushuaiwei of Kunming, Yunnan, China.
The disputed domain name <swissquot.com> is registered with 22net, Inc. (the "Registrar").
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 18, 2016. On April 18, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 19, 2016, 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 April 19, 2016 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 April 20, 2016.
On April 19, 2016, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On April 20, 2016, the Complainant reiterated its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding by the specified due date or thereafter.
The Center verified that 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 in both Chinese and English, and the proceeding commenced on April 25, 2016. In accordance with the Rules, paragraph 5, the due date for Response was May 15, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 17, 2016.
The Center appointed Matthew Kennedy as the sole panelist in this matter on May 23, 2016. 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 is a Swiss company that provides online banking, foreign exchange and trading services. It owns trademarks consisting of or including the word SWISSQUOTE, including International trademark registration no. 742603, for SWISSQUOTE and logo, registered in 2000, and International trademark registration no. 1132411 for SWISSQUOTE, registered in 2012. These trademarks are registered in respect of advertising, financial and other services in classes 35 and 36 and, in the latter registration, class 38. The Complainant operates through various websites including "www.swissquote.com", "www.swissquote.ch" and "swissquote" in other Top-Level Domains.
The Respondent "xushuaiwei" is an individual located in Kunming, Yunnan, China and the registrant of the disputed domain name. The other Respondent was a WhoIs privacy service that has now been deleted from the amended Complaint. The disputed domain name was registered on February 8, 2015 and at the time of the Complaint resolved to a website offering foreign exchange and trading services in several languages including English.
The Complainant argues that the disputed domain name is confusingly similar to its SWISSQUOTE trademarks. The only difference is the deletion of the letter "e" and the addition of ".com".
The Complainant argues that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is not affiliated with or authorized by the Complainant in any way. The Complainant has never authorized the Respondent to make any use of its SWISSQUOTE trademarks or to register the disputed domain name. The disputed domain name redirects to a foreign exchange and trading website of a competitor of the Complainant. The Respondent has made no use of the disputed domain name of its own.
The Complainant argues that the disputed domain name was registered and is being used in bad faith. This is a clear case of typosquatting. The Respondent has only registered and is only using the disputed domain name to divert customers to a competitor's site for commercial gain.
The Respondent did not reply to the Complainant's contentions.
Paragraph 11(a) of the Rules provides that "unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding." The Registrar confirmed that the Registration Agreement for the disputed domain name is in Chinese.
The Complainant requests that the language of the proceeding be English. Its main arguments are that the disputed domain name resolves to a website in English and that the Complainant does not understand Chinese so that translation of documents would create undue delay and substantial expense. The Respondent did not comment on the language request.
Paragraph 10(b) and (c) of the Rules require the Panel to ensure that the parties are treated with equality, that each Party is given a fair opportunity to present its case and that the administrative proceeding take place with due expedition. Prior UDRP panels have decided that the choice of language of the proceeding should not create an undue burden for the parties. See, for example, Solvay S.A. v. Hyun-Jun Shin, WIPO Case No. D2006-0593; Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui'erpu (HK) electrical appliance co. ltd., WIPO Case No. D2008-0293.
The Panel observes that the Complaint in this proceeding was filed in English. The Respondent has not expressed any wish to respond to the Complaint or otherwise participate in this proceeding. Therefore, the Panel considers that requiring the Complainant to translate the Complaint into Chinese would create an undue burden and delay.
Having considered all the circumstances above, the Panel determines under paragraph 11(a) of the Rules that the language of this proceeding is English.
Paragraph 4(a) of the Policy provides that the Complainant must prove each of the following elements:
(i) the disputed domain name is 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 name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Based on the evidence submitted, the Panel finds that the Complainant has rights in registered trademarks consisting of or including the word SWISSQUOTE.
The disputed domain name <swissquot.com> incorporates the Complainant's SWISSQUOTE trademark in its entirety but for the omission of the letter "e". The omission of the final "e" is an obvious misspelling of the Complainant's SWISSQUOTE trademark, which is the dominant and only distinctive element of the disputed domain name.
An additional element in the disputed domain name is ".com" but this is a generic Top-Level Domain ("gTLD"). A gTLD suffix generally has no capacity to distinguish a domain name from a trademark. See Lego Juris A/S v. Chen Yong, WIPO Case No. D2009-1611; Dr. Ing. H.c. F. Porsche AG v. zhanglei, WIPO Case No. D2014-0080.
Therefore, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. The Complainant has satisfied the first element in paragraph 4(a) of the Policy.
Paragraph 4(c) of the Policy sets out the following circumstances which, without limitation, if found by the Panel, shall demonstrate that the Respondent has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy:
"(i) before any notice to [the Respondent] 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] (as an individual, business, or other organization) [has] been commonly known by the [disputed] domain name, even if [the Respondent has] acquired no trademark 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 trademark or service mark at issue."
As regards the first and third circumstances set out above, the Panel has already found that the disputed domain name is confusingly similar to the Complainant's SWISSQUOTE trademark. The Complainant submits that the Respondent is not authorized to use its trademark or register it as a domain name. At the time of the Complaint, the disputed domain name resolved to a website that offered services of the same type as the Complainant. This shows that the Respondent was well aware of the nature of the Complainant's services and intentionally attempted to attract Internet users who misspelled the Complainant's trademark and directed them to a competitor's website, thereby taking advantage of the reputation of the Complainant's trademark and services to offer services or to misleadingly divert consumers. The Panel does not consider that a legitimate interest. See ACCOR v. Steve Kerry / North West Enterprise, Inc., WIPO Case No. D2006-0649.
As regards the second circumstance set out above, the Respondent's name is "xushuaiwei", which has no apparent connection with the name "swissquot".
In view of the above circumstances, the Panel considers that the Complainant has discharged its burden of proof that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The burden now shifts to the Respondent to show that he does have some rights or legitimate interests, but the Respondent did not respond to the Complaint.
Therefore, based on the record of this proceeding, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has satisfied the second element in paragraph 4(a) of the Policy.
Paragraph 4(b) of the Policy provides that certain circumstances, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. The fourth circumstance is as follows:
"(iv) by using the [disputed] domain name, [the Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the Respondent's] web site 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 [the Respondent's] web site or location or of a product or service on [the Respondent's] web site or location."
The disputed domain name was registered in 2015, years after the Complainant registered its trademarks. The disputed domain name is an obvious misspelling of the Complainant's SWISSQUOTE trademarks (plus a gTLD) and has no other apparent meaning. Further, the nature of the services offered on the website to which the dispute domain name resolves indicates to the Panel that the Respondent was well aware of the Complainant's trademark and its services and that the choice to register a domain name confusingly similar to the Complainant's trademark was deliberate.
The disputed domain name was used to attract Internet users who misspell the Complainant's domain name and direct them to a Complainant's competitor's website, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of that website or of a service on that website. This use is intentional and either for the Respondent's own commercial gain, if he is paid to direct traffic to that website, or for the commercial gain of the competitor offering services on that other website. In either scenario, these facts satisfy the requirements of paragraph 4(b)(iv) of the Policy. See Express Scripts, Inc. v. Windgather Investments Ltd. / Mr. Cartwright, WIPO Case No. D2007-0267.
The Panel notes that the use of the disputed domain name changed after the filing of the Complaint, and that the website now redirects to a website in Chinese which provides general information on a province in China. This change of use after receiving notice of the Complaint may be further evidence of bad faith and, in any event, does not alter the Panel's conclusion regarding bad faith use.
Therefore, the Panel finds that the disputed domain name has been registered and is being used in bad faith. The Complainant has satisfied the third element in 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 <swissquot.com> be transferred to the Complainant.
Matthew Kennedy
Sole Panelist
Date: May 24, 2016