The Complainant is FXCM Global Services, LLC, United States of America (“United States”), represented by SafeNames Ltd., United Kingdom (“UK”).
The Respondent is Domain Admin, Privacy Protect, LLC (PrivacyProtect.org), United States / xiao wang, China.
The disputed domain name <fxcm9.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 17, 2020. On September 17, 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 28, 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 29, 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 October 1, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 21, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 22, 2020.
The Center appointed Daniel Peña as the sole panelist in this matter on November 2, 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 is a London-based company which operates as a retail broker in the foreign exchange (“Forex”) market. Founded in 1999, the Complainant is a leading provider of online Forex trading, contract for differences (“CFD”) trading and related services. The Complainant’s services aim to provide global traders with innovative trading tools and high-quality training educators. Such tools include mobile trading, one-click order execution and trading from real-time charts. The Complainant also offers educational courses on Forex trading.
The Complainant’s area of expertise, namely the Forex and CFD marketplaces, are international venues and the Complainant has a prominent reputation in these markets. This is also evidenced by virtue of the Complainant’s numerous international offices, which can be found in the UK, Australia, Hong Kong, China and South Africa, among other locations.
The Complainant offers clients enhanced packages as part of its services. This includes FXCM Pro, which provides retail brokers, small hedge funds and emerging market banks access to wholesale execution and liquidity. Another package, FXCM Prime, provides high and medium frequency funds access to prime brokerage services.
The Complainant predominantly operates from the domain name <fxcm.com>, for its UK-centered operations. The Complainant offers its services in multiple languages, including English, Chinese, German, French and Italian. The Complainant also has a mobile app, available on popular app market places such as the Apple Store and Google Play.
In addition to its main website, the Complainant has also registered domain names which feature the FXCM brand and that utilize various generic Top-Level Domain (“gTLD”) and country code Top-Level Domain (“ccTLD”) extensions.
The Complainant holds a number of FXCM registered trademarks, some of which are exhibited below:
|
Trademark |
Jurisdiction |
Registration Number |
Registration Date |
Classes Covered |
|
FXCM |
United States |
2620953 |
September 17, 2002 |
36 |
|
FXCM |
European Union |
003955523 |
November 3, 2005 |
35, 36, 41 |
|
FXCM |
Australia |
1093998 |
June 13, 2006 |
36, 41 |
The Complainant further utilizes the FXCM trademark as part of its brand logo.
The Complainant has also established social media presence and uses the FXCM mark to promote its services under this name, in particular on:
- Facebook: www.facebook.com/FXCM
- Twitter: https://twitter.com/fxcm”
- YouTube: www.youtube.com/fxcm
The disputed domain name was registered on July 11, 2020, and was previously linked to the website “www.fxcm9.com” displaying the Complainant’s distinctive FXCM logo, and requiring personal data to register and then login to access the website. At the time of filing of the Complaint and this Decision, the disputed domain name was inactive.
The Complainant holds a number of registered trademarks for the “fxcm” term, which cover multiple jurisdictions. The Complainant also relies on the goodwill and recognition that has been attained under the FXCM trademark, which has become a distinctive identifier of its goods and services.
The Complainant further submits that previous UDRP panels have recognized the value of the FXCM trademark and its association with the Complainant, namely: FXCM Global Services LLC v. WhoisGuard Protected, Whoisguard Inc. / Jenny Sohia, WIPO Case No. D2018-1111 (“Complainant’s mark is distinctive and well-known in its industry”). Given the above, the Complainant submits that it has clearly satisfied the requirement of holding rights in the FXCM mark.
The Complainant submits that the disputed domain name is confusingly similar to its FXCM mark because it incorporates the Complainant’s mark in its entirety, followed by a solitary number “9”. Given this, and in light of the above, the Complainant submits that the number “9” after the Complainant’s globally distinctive FXCM mark does nothing to negate confusing similarity under the first element.
The Complainant submits that the Respondent lacks rights or legitimate interests in the disputed domain name.
The Complainant submits that the Respondent has not used, nor prepared to use, the disputed domain name in connection with a bona fide offering of goods or services. The disputed domain name has been used to resolve to a website which, at the same time as brandishing the Complainant’s distinctive FXCM logo, appeared to offer a login portal facility enabling users to input personal data. Given this, and with regard to the fact that the Complainant operates in the field of financial services, the Complainant submits that it is plausible the disputed domain name has been used for phishing purposes.
The Complainant submits that the Respondent’s replication of the Complainant’s distinctive FXCM logo, purporting to be connected to the Complainant, does not constitute a bona fide offering of goods or services under the Policy.
The FXCM mark is distinctive and not used in commerce other than by the Complainant. To the best of the Complainant’s knowledge, the Respondent is not commonly known by the terms “fxcm” or “fxcm9”, nor is it making a bona fide offering of goods or services by such terms.
The Complainant submits that the Respondent is not 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 Complainant’s FXCM mark. The Respondent has used the confusingly similar disputed domain name and copied FXCM logo to capitalize on the Complainant’s reputation, inducing Internet visitors (believing they are creating an account/accessing services of the Complainant) to input personal data.
The Complainant further submits that it sent a cease and desist letter to the Respondent on August 18, 2020, and a follow-up notice on August 26, 2020. The Respondent did not reply to either communication, which the Complainant argues, it constitutes further evidence that it knowingly acted in bad faith.
The Complainant asserts that the Respondent has registered and used the disputed domain name in bad faith prior to notice of the Complaint.
The Complainant submits that the Respondent intentionally attempted to attract, for commercial gain, Internet users by creating a likelihood of confusion with the Complainant’s FXCM mark. The Complainant submits that this baseline presumption exists here, as the disputed domain name clearly comprises the entirety of the Complainant’s distinctive, globally recognizable mark.
Beyond the nature of the disputed domain name itself, the Complainant submits that the Respondent has intentionally attempted to attract and deceive Internet users for commercial gain by purporting to be connected to the Complainant’s offerings. This attempted deception is most clearly manifested in the Respondent’s replication of the Complainant’s distinctive FXCM logo at the website’s homepage under the disputed domain name.
The Complainant asserts that the Respondent is evidently attempting to convince visitors that they are accessing, and registering with, the Complainant’s services.
The Respondent did not reply to the Complainant’s contentions.
To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark 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.
Considering these requirements, the Panel rules as follows:
The Respondent’s incorporation of the Complainant’s FXCM trademark in full in the disputed domain name is evidence that the disputed domain name is confusingly similar to the Complainant’s mark. Mere adding of the number “9” in the disputed domain name does not prevent a finding of confusing similarity with the Complainant’s mark.
The Panel is satisfied that the disputed domain name is confusingly similar to the Complainant’s mark and the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy.
Pursuant to paragraph 4(a)(ii) of the Policy, the Complainant must prove that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant bears the burden of proof in establishing this requirement. In view of the difficulties inherent in proving a negative and because the relevant information is mainly in the possession of the Respondent, it is enough for the Complainant to establish a prima facie case which, if not rebutted by sufficient evidence from the Respondent will lead to this ground being set forth.
Refraining from submitting a Response, the Respondent has brought to the Panel’s attention no circumstances from which the Panel could infer that the Respondent has rights or legitimate interests in the disputed domain name.
The Panel will now examine the Complainant’s arguments regarding the absence of rights or legitimate interests of the Respondent in connection with the disputed domain name.
The Respondent has no connection or affiliation with the Complainant and has not received any license or consent, express or implied, to use the Complainant’s trademarks in a domain name or in any other manner.
The Respondent did not submit a Response or attempt to demonstrate any rights or legitimate interests in the disputed domain name, and the Panel draws adverse inferences from this failure, where appropriate, in accordance with the Rules, paragraph 14(b).
Furthermore, the unrebutted claim of the Complainant that the disputed domain name was previously used for deliberately attracting Internet users to the website at the disputed domain name in the mistaken belief that it was the website of the Complainant, or otherwise linked to or authorized by the Complainant, and it was subsequently inactive supports a finding that the Respondent lacks rights or legitimate interests in the disputed domain name.
The Panel finds the Respondent has no rights or legitimate interests in respect of the disputed domain name and that paragraph 4(a)(ii) of the Policy is satisfied.
Paragraph 4(b) of the Policy states that any of the following circumstances, in particular but without limitation, shall be considered evidence of the registration and use of a disputed domain name in bad faith:
(i) circumstances indicating that the respondent registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant (the owner of the trademark or service mark) or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name;
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct;
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its 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 its website or location.
In the Panel’s view, a finding of bad faith may be made where the Respondent “knew or should have known” of the registration and/or use of the trademark prior to registering the disputed domain name. In this case, the widespread commercial recognition of the trademark FXCM is such that the Respondent, must have had knowledge of the trademark before registering the disputed domain name.
The Respondent appears to have chosen the disputed domain name in order to deliberately attract Internet users to its website in the mistaken belief that it was the website of the Complainant, or otherwise linked to or authorized by the Complainant by displaying the Complainant’s FXCM logo to capitalize on the Complainant’s reputation, inducing Internet users into believing they were creating an account/accessing services of the Complainant to input personal data. As such, the Panel is satisfied that by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website. Under paragraph 4(b)(iv) of the Policy, this circumstance shall be evidence of the registration and use of a domain name in bad faith.
Although the disputed domain name is currently inactive, it does not prevent a finding of bad faith under the circumstances of this case according to the doctrine of passive holding. See section 3.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
Thus, the Panel concludes that the disputed domain name was registered and is being used in bad faith and that paragraph 4(a)(iii) of the Policy is satisfied.
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 <fxcm9.com> be transferred to the Complainant.
Daniel Peña
Sole Panelist
Date: November 12, 2020