The Complainant is FXCM Global Services, LLC, United States of America, represented by SafeNames Ltd., United Kingdom.
The Respondent is Guo Qing Zhang, Zhan Guo Qing, China.
The disputed domain name <fxcm-cn.com> is registered with Network Solutions, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 25, 2020. On September 25, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 25, 2020, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the 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 9, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 29, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 4, 2020.
The Center appointed Sok Ling MOI as the sole panelist in this matter on November 16, 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, 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 |
June 13, 2006 |
The disputed domain name <fxcm-china.com> was registered on August 27, 2018. According to the evidence submitted by the Complainant, the disputed domain name resolves to a website offering various online gambling games.
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 term “cn” (an abbreviation for 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 Guo Qing Zhang. 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 offering various online gambling games. Using a domain name which incorporates a trade mark and a geographical location to divert Internet traffic to gambling websites does not constitute a bona fide offering of goods or services.
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 his 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 his 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 offering various online gambling games. By redirecting Internet traffic searching for “FXCM” to a website with various gambling games, a strong presumption arises that the Respondent or a third party stands to profit or make a “commercial gain” from advertising revenue by such an arrangement. In the Panel’s opinion, the Respondent clearly seeks to capitalise on the commercial value of the Complainant’s FXCM trade mark to attract financial gain for itself. As such, the Panel finds that the circumstances referred to in paragraph 4(b)(iv) of the Policy apply to the present case.
Further, according to the evidence submitted by the Complainant, the Respondent’s email address is connected to more than 4,000 active domain name registrations which comprise of third party trade marks, including <hktoshiba.com>, <alibabadk.com>, <nikelist.com>, <nikeoffer.com>, <apple-chinese.com> and <lego-dvd.com>. This is evidence that the Respondent is engaging in a pattern of cybersquatting. As such, the Panel finds that the circumstances referred to in paragraph 4(b)(ii) of the Policy apply to the present case.
The Respondent could not be reached at the physical address and fax number recorded with the Registrar, which strongly suggests that the Respondent had provided false contact details at the time of registering the disputed domain name. The Panel considers this further evidence of bad faith.
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 used 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-cn.com> be transferred to the Complainant.
Sok Ling MOI
Sole Panelist
Date: November 28, 2020