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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

FXCM Global Services, LLC. v. Privacy Protect, LLC (PrivacyProtect.org) / lin chen

Case No. D2020-1047

1. The Parties

The Complainant is FXCM Global Services, LLC., United States of America (“United States”), represented by SafeNames Ltd., United Kingdom.

The Respondent is Privacy Protect, LLC (PrivacyProtect.org), United States / lin chen, China.

2. The Domain Name and Registrar

The disputed domain name <fxcm.one> and <fxcm1.one> are registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 28, 2020. On April 29, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 29, 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 May 6, 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 May 7, 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 May 8, 2020. In accordance with the Rules, paragraph 5, the due date for Response was May 28, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 4, 2020.

The Center appointed Alistair Payne as the sole panelist in this matter on June 15, 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.

4. Factual Background

The Complainant was founded in 1999 and is based in London, United Kingdom. It is a retail foreign exchange broker and provides, in particular, online Forex trading, CFD trading, and related services both in the United Kingdom and in worldwide markets. The Complainant predominantly operates through its website at <fxcm.com> through which it offers its’ services in various languages including English and Chinese. It offers a mobile application to customers and maintains offices in Australia, France, Germany, Hong Kong, China, and South Africa. It also owns domain names across a range of generic Top-Level domains (“gTLDs”) and country code Top-Level Domains (“ccTLDs”) that wholly incorporate its FXCM mark in the format <fxcm.[ ]>. The Complainant owns registered trade marks for its FXCM word mark in various countries, including United States registration no. 2620953 registered on September 17, 2002.

The disputed domain name <fxcm.one> was registered on February 12, 2020 and <fxcm1.one> was registered on February 24, 2020. They redirect to a website that is branded as “FXCM” and which appears to offer foreign exchange services.

5. Parties’ Contentions

A. Complainant

The Complainant submits that it owns registered trade mark rights for its FXCM trade mark as set out above. It says that the disputed domain name <fxcm.one> wholly incorporates its trade mark and discounting the gTLD is in fact identical to its trade mark. It says that the other disputed domain name <fxcm1.one> only differs from the Complainant’s trade mark by the addition of the numeral “1”. As a consequence, the Complainant submits that the disputed domain names are either identical or confusingly similar to its FXCM registered trade mark.

The Complainant submits that to the best of its knowledge the Respondent does not have any trade mark rights in “FXCM”, is not commonly known by the disputed domain names, and has no license from the Complainant to use the FXCM trade mark. It says that the Respondent is using the Complainant’s distinctive trade mark in the disputed domain names in order to provide services that compete with the Complainant’s, and that such use is aimed at confusing Internet users, as the webpages on the Respondent’s website use the Complainant’s FXCM logo and thus are designed to insinuate affiliation or endorsement of the website by the Complainant. This, says the Complainant, is a dangerous misrepresentation as Internet users may log in to the site and input their bank account details and deposit funds thinking that the Complainant is managing the service. In this way the Complainant suggests that the disputed domain names are used for fraudulent purposes such as phishing, which is clearly not a legitimate or bona fide use. It notes that the site appears to be unregulated and unauthorised although the Respondent is clearly providing a service in the highly regulated financial services environment.

As far as bad faith is concerned, the Complainant says that its earliest trade mark registration of the FXCM mark predates the creation date of the disputed domain names by 18 years. It says that the FXCM mark is distinctive and has developed a considerable reputation for the provision of Forex and CFD online trading. It notes that Google searches show the Complainant’s FXCM brand and related services as the first result and submits in any event that the use by the Respondent of the Complainant’s FXCM logo on the website to which the disputed domain names redirect is an indicator that the Respondent was well aware of the Respondent’s mark and business when it registered the disputed domain names.

In addition the Complainant submits that the Respondent has intentionally used the goodwill attaching to the Complainant’s mark in the disputed domain names in order to confuse Internet users and to attract them to the Respondent’s website where they are encouraged to submit account details and deposit funds in what the Complainant says amounts to a phishing scheme, which it submits is itself evidence of bad faith and which also fulfills the requirements of paragraph 4(b)(iv) of the Policy. Finally, the Complainant notes that it never received a response to its cease and desist letter sent in April 2020.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

A. Identical or Confusingly Similar

The Complainant has demonstrated that it owns registered trade marks for its FXCM word mark in various countries but, in particular, in the United States under United States registration no. 2620953, registered on September 17, 2002. Each of the disputed domain names wholly incorporate the Complainant’s distinctive FXCM trade mark, on the one hand with no addition prior to the gTLD and on the other with the addition of the numeral “1”. The addition of the numeral “1” in the disputed domain name <fxcm1.one> does not prevent a finding of confusing similarity. Accordingly, the Panel finds that the disputed domain names are either identical or confusingly similar to the Complainant’s mark and the Complaint succeeds under this element of the Policy.

B. Rights or Legitimate Interests

The Complainant has submitted that to the best of its knowledge the Respondent does not have any trade mark rights in “FXCM”, is not commonly known by the disputed domain names, and has no license from the Complainant to use the FXCM trade mark. It appears however that the Respondent is using the Complainant’s distinctive trade mark in the disputed domain names in order to provide financial services that compete with the Complainant’s. The Respondent is doing this from a website on which the Respondent is using the Complainant’s FXCM logo. There is no indicator on the website that the Respondent is independent of the Complainant and to all intents and purposes it seems that the Respondent is attempting to represent to potential customers that its website is operated by the Complainant, or that it is somehow affiliated with the Complainant when it is not, which is neither legitimate or bona fide conduct. The Complainant also submits that the Respondent is fraudulently “phishing” in that it is seeking to collect customer account details and personal information, and direct deposits through its website. In addition, the Complainant notes that the Respondent’s website does not appear to be regulated or authorised by a financial services regulator.

The Panel finds that the Complainant has made out a prima facie case that the Respondent’s conduct is not bona fide and that it has no rights or legitimate interests in either of the disputed domain names. The Respondent has never responded to the Complainant’s cease and desist letter and has failed to rebut any of these allegations by filing a response. As a result and also for the reasons set out under Part C below, the Panel finds that the Complaint succeeds under the second element

C. Registered and Used in Bad Faith

The Complainant’s United States trade mark registration for the FXCM mark was registered approximately 18 years prior the registration of each of the disputed domain names. The FXCM mark is a distinctive mark and by the date of registration of the disputed domain names was, based on the Complainant’s evidence, clearly apparent from a Google or Internet search. The fact that the Respondent appears to be providing competing services to those provided by the Complainant and has reproduced the Complainant’s FXCM logo on the website to which the disputed domain names resolve, indicates that the Respondent was more than likely aware of the Respondent’s mark and business when it registered the disputed domain names and did so on purpose.

By using the disputed domain names to divert Internet users to a website offering competing services and by reproducing the Complainant’s logo on that website without authority, the Respondent has sought to divert and to confuse Internet users for his own commercial gain. In the circumstances of this case, this conduct amounts to using the disputed domain names to intentionally attract Internet users to the Respondent’s website for his own commercial purposes by creating a likelihood of confusion with the Complainant’s trade mark as to the source, sponsorship, affiliation, or endorsement of the website. Under paragraph 4(b)(iv) of the Policy this amounts to evidence of registration and use of the disputed domain name in bad faith.

The fact that the Respondent failed to respond to the Complainant’s cease and desist letter and engaged a privacy service to help mask its identity only reinforces the Panel’s view of the Respondent’s use of the disputed domain names in bad faith. Whether the Respondent has engaged in “phishing” as alleged by the Complainant is not proven based on the evidence on the record, but this in no way detracts from the Panel’s finding that there is evidence of registration and use of each of the disputed domains in bad faith under paragraph 4(b)(iv) of the Policy. The Complaint therefore also succeeds under this element of the Policy.

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 name <fxcm.one> and <fxcm1.one> be transferred to the Complainant.

Alistair Payne
Sole Panelist
Date: June 29, 2020

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