WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

FXCM Global Services, LLC v. See PrivacyGuardian.org / asdasd

Case No. D2021-1607

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 See PrivacyGuardian.org, United States / asdasd, United States.

2. The Domain Name and Registrar

The disputed domain name <fxcm.buzz> (the “Domain Name”) is registered with NameSilo, LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 24, 2021. On May 25, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On May 25, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the 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 27, 2021, 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 28, 2021.

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 June 4, 2021. In accordance with the Rules, paragraph 5, the due date for Response was June 24, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 11, 2021.

The Center appointed W. Scott Blackmer as the sole panelist in this matter on July 19, 2021. 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 is a retail broker in the online foreign exchange (“Forex”) market. The Complaint states that the Complainant was founded in 1999, but it appears that this statement refers to a predecessor legal entity that initially established the business and the associated FXCM trademarks (an acronym evidently corresponding to “Forex Capital Markets”), which were later assigned to the Complainant. The Complainant is a limited liability company established under the laws of the state of Delaware, United States, in June 2015, according to the online database operated by the Delaware Division of Corporations, with headquarters in London, England. The Complainant’s affiliate Forex Capital Markets Limited is regulated by the Financial Conduct Authority (FCA) in the United Kingdom and operates offices in the United Kingdom, Australia, Hong Kong, China, South Africa, Germany, France, Italy, and Greece, with “affiliate offices” in Canada and Israel.

The Complainant provides traders with online tools and training for online trading in Forex and CFDs (“contracts for differences”, a kind of over-the-counter financial derivatives trading facilitated by networks of brokers and allowed in some jurisdictions). Such tools include “mobile trading, one-click order execution, and trading from real-time charts”. Some of the Complainant’s services are branded with the FXCM mark, prominently “FXCM Prime” and “FXCM PRO”.

The Complainant predominantly operates from a website at “www.fxcm.com”, offering services in several languages including English, Chinese, German, French and Italian. The Complainant also has a mobile app, available on popular app marketplaces such as the Apple Store and Google Play. In addition to <fxcm.com>, the Complainant holds numerous domain names based on the FXCM mark, including <fxcm.asia>, <fxcm.bs>, <fxcm.ba>, <fxcm.capital>, <fxcm.bi>, <fxcm.ceo>, <fxcm.blog>, <fxcm.co.dk>, <fxcm.bo>, <fxcm.co.uk>, and <fxcm.broker>. The Complainant also has linked social media accounts on Facebook, Twitter, and YouTube.

The record includes examples of awards and media recognition for the Complainant’s tools and applications in the period 2017-19. The record shows how the Complainant’s group publicized its “20th anniversary campaign” in 2019, including online seminars and “active trader events”. The Panel also notes that the Complainant was formerly well known as one of the largest retail Forex traders in the United States and received considerable media attention in 2016-17 due to its difficulties with United States regulators that led to its withdrawal from the United States market, its filing for bankruptcy, and the acquisition of a majority of its shares by Leucadia National Corporation (now Jefferies Financial Group). This acquisition is reflected in what the Complaint characterizes as the Complainant’s “brand logo”, which consists of a design mark similar to the registered composite FXCM mark with the additional slogan, “A Leucadia Company”, as displayed on the Complainant’s Facebook page.

The Complainant holds several trademark registrations, including the following:

The Registrar reports that the Domain Name was created on February 28, 2021, and is registered in the name of “asdasd”. That does not appear to be a genuine personal or organizational name but seems to be simply the result of typing, twice, the first three letters on the third row of a standard QWERTY keyboard (commonly used with laptops and other computers in the United States). Similarly, the next line of the contact details, where the name of the organization might normally appear, is “qwe 12341”, which looks like the result of pressing the first three keys on the second row of the QWERTY keyboard and the first number keys on the first row of the keyboard. The first line of the postal address given for the registrant is the apparently random string “12414”, with no street name or post box abbreviation, and no city is named. In short, the registrant information provided by the Respondent is patently incomplete and inaccurate.

It does not appear that the Domain Name has ever been used for an active website. The Panel notes that the Internet Archive’s Wayback Machine has no archived screenshots of an associated website.

5. Parties’ Contentions

A. Complainant

The Complainant asserts that the Domain Name is identical or confusingly similar to its FXCM mark, incorporating it in its entirety. The Complainant has not given the Respondent permission to use its mark in the Domain Name, and there is no evident business or trademark of the Respondent’s corresponding to the Domain Name.

The Respondent has apparently not yet put the Domain Name to use or attempted to sell it. Nevertheless, the Complainant cites Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003, for the doctrine of “passive holding”, arguing that there is no plausible reason for registering and holding the Domain Name other than in contemplation of exploiting the Complainant’s trademark. The Complainant finds further evidence of bad faith in the Respondent’s failure to respond to cease-and-desist communications.

The Complainant cites the similar case of FXCM Global Services, LLC v. 杨平 (Yang Ping), 贵州同兴鸿宇物流有限公司 (Gui Zhou Tong Xing Hong Yu Wu Liu You Xian Gong Si), WIPO Case No. D2020-2809, which concerned the domain name <fxcm.love>. The panel in that proceeding concluded, “Given the notoriety of the Complainant and of its Trade Mark; the fact the disputed domain name is identical to the Trade Mark; the lack of any response from the Respondent; and the passive holding of the disputed domain name, the Panel finds, in all the circumstances, that the requisite element of bad faith has been made out. The Panel considers it is inconceivable the Respondent was not aware of the Complainant’s Trade Mark at the time it registered the disputed domain name.”

B. Respondent

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

6. Discussion and Findings

Paragraph 4(a) of the Policy provides that in order to divest a respondent of a domain name, a complainant must demonstrate each of the following:

(i) the 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 domain name; and

(iii) the domain name has been registered and is being used in bad faith.

Under paragraph 15(a) of the Rules, “[a] Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.

A. Identical or Confusingly Similar

The first element of a UDRP complaint “functions primarily as a standing requirement” and entails “a straightforward comparison between the complainant’s trademark and the domain name”. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7. The Complainant holds trademark registrations for FXCM and FXCM PRO and figurative marks including FXCM as the prominent textual element. The Domain Name incorporates the FXCM mark in its entirety. As usual, the generic Top-Level Domain (“gTLD”) “.buzz” is disregarded as a standard registration requirement. See id. section 1.11.2.

Accordingly, the Panel finds that the Domain Name is identical or confusingly similar to the Complainant’s registered FXCM trademarks and concludes that the Complaint satisfies the first element of the Policy.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy gives non-exclusive examples of instances in which the respondent may establish rights or legitimate interests in the domain name, by demonstrating any of the following:

(i) before any notice to it of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) that the respondent has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or

(iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

Because a respondent in a UDRP proceeding is in the best position to assert rights or legitimate interests in a domain name, it is well established that after a complainant makes a prima facie case, the burden of production on this element shifts to the respondent to come forward with relevant evidence of its rights or legitimate interests in the domain name. See WIPO Overview 3.0, section 2.1.

The Complainant in this proceeding has demonstrated trademark rights, the lack of permission to use its well-known FXCM mark, and the Respondent’s lack of use of the Domain Name. The burden shifts to the Respondent to produce evidence of rights or legitimate interests. The Respondent has not done so. The Panel concludes that the Complainant prevails on this second element of the Complaint.

C. Registered and Used in Bad Faith

The Policy, paragraph 4(b), furnishes a list of circumstances that “shall be evidence of the registration and use of a domain name in bad faith”. The list is explicitly not exhaustive, and panels have long found bad faith in cases of “passive holding” of a domain name based on a distinctive and well-known trademark, particularly when there are other indicia of bad faith such as efforts to hide the identity of the Respondent and failure to reply to trademark and UDRP claims, as in the current proceeding. See WIPO Overview 3.0, section 3.3.

The Complainant’s FXCM mark is distinctive and well known in online trading, as detailed above and as recognized in FXCM Global Services LLC v. WhoisGuard Protected, Whoisguard Inc. / Jenny Sohia, WIPO Case No. D2018-1111. The mark does not correspond to a dictionary word or phrase. The Panel finds it probable that the Domain Name was selected with the trademark in contemplation. The Respondent did not furnish complete or accurate registration contact details as required, and the Respondent has not come forward in reply to the Complaint in this proceeding, or to earlier communications from the Complainant, to offer a legitimate reason for registering and maintaining the Domain Name. The totality of these circumstances indicate registration and use in bad faith within the meaning of the Policy.

The Panel concludes that the Complainant has established the third element of the Complaint.

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 Domain Name, <fxcm.buzz>, be transferred to the Complainant.

W. Scott Blackmer
Sole Panelist
Date: August 2, 2021