The Complainant is HiFX plc of Windsor, the United Kingdom of Great Britain and Northern Ireland, represented by Turner Parkinson LLP of the United Kingdom of Great Britain and Northern Ireland.
The Respondent is Qiumei Yao aka yaoqiumei of Beijing, the People’s Republic of China.
The disputed domain name <hifx-asia.com> (“the Domain Name”) is registered with HiChina Zhicheng Technology Ltd (“the Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 12, 2011. On April 12, 2011, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On April 13, 2011,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. On April 13, 2011, the Center transmitted by email to the parties in both Chinese and English regarding the language of the proceeding. On April 15, 2011, the Complainant confirmed 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. In response to a notification by the Center that the Complaint was administratively deficient regarding the Registrar’s name and Mutual Jurisdiction, the Complainant filed an amended Complaint on April 15, 2011.
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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 19, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was May 9, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 10, 2011.
The Center appointed Karen Fong as the sole panelist in this matter on May 17, 2011. 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 British company which has a registered trade mark for HIFX in the United Kingdom under trade mark registration number 2426533 in class 36 in relation to services which includes amongst other things, currency exchange services; currency dealing; buying and selling currency; currency exchange rate quotations and other financial services registered on July 7, 2006 (“the HIFX Trade Mark”). A copy of a printout of the trade mark details from the United Kingdom Intellectual Property Office website was submitted with the Complaint.
The Domain Name was registered on November 25, 2009. The Panel has reviewed the website connected to the Domain Name (“the Website”) and confirms that it is active.
The Complainant contends that the Domain Name is identical or confusingly similar to the HIFX Trade Mark, the Respondent has no rights or legitimate interests with respect to the Domain Name, and that the Domain Name was registered and used in bad faith. The Complainant requests transfer of the Domain Name.
The Complainant alleges that the Respondent falsely uses some of the Complainant’s trading information on the Website. In particular, it uses the Complainant’s company headquarters address, its Australian Securities and Investments Commission (ASIC) registration number (106779953) and its Financial Services Authority (FSA) registration number (462 444) for the United Kingdom. The Complainant did not provide any printouts of the Website showing the information stated above nor did it provide any evidence of its headquarters address (other than the address stated in the Complaint) or either of the registration numbers with both financial authorities. The Complainant alleges that the use of the information on the Website is aimed to lead users to believe that the Domain Name belongs to the Complainant thereby causing confusion leading to damage to the Complainant. This also demonstrates the Respondent’s bad faith.
The Respondent did not reply to the Complainant’s contentions.
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that:
(i) The Domain Name is identical or confusingly similar to a trade mark 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 was registered and is being used in bad faith.
The Rules, paragraph 11, provide that unless otherwise agreed by the parties or specified otherwise in the registration agreement between the respondent and the registrar in relation to the disputed domain name, the language of the 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 proceedings. According to the information received from the Registrar, the language of the registration agreement is Chinese.
The Complainant submits in Section IV. and paragraph 10 of the Complaint that the language of the proceeding should be English. In response to the Center’s email of April 13, 2011, regarding the language of the proceeding, the Complainant filed further submissions requesting that English be the language of the proceeding. The reasons given by the Complainant are as follows: a) the Registrar’s website is an English website which indicates that the Registrar has full understanding of English and it appears that its primary business is in English; b) the Registrar should be able to assist the Respondent; c) The Respondent is holding itself out to be a company having its headquarters in the United Kingdom and is also using the Complainant’s United Kingdom FSA registration number and ASIC registration number which indicates that it has places of business in the United Kingdom and Australia, both English speaking countries; and d) the Complainant will be unfairly prejudiced as it would be prohibitively expensive for the Complainant to have translate everything into Chinese. The Respondent did not comment on the language of the proceeding by the specified due date.
As mentioned in paragraph 5(a) above, the Complainant did not submit copies of the relevant pages of the Website to substantiate its contentions nor provided any evidence of its own address and registration numbers with the financial authorities mentioned. The consensus view as stated in WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) is that a panel may undertake limited factual research into matters of public record if it is deems this necessary to reach the right decision. This may include visiting the website linked to the domain name. This panel has reviewed the home page of the Website and notes that is does confirm the Complainant’s allegations in relation to the Website. The Panel also very briefly looked at the section entitled “regulatory information” on the Complainant’s website at “WWW.HIFX.CO.UK” and notes that the Complainant’s FSA registration number in the United Kingdom is the same number appearing on the Website. The Panel is unable to verify the ASIC number.
Considering all these circumstances the Panel accepts the Complainant’s submissions regarding the language of the proceeding (save the allegation in relation to the ASIC registration number) and is satisfied that the Respondent appears to be familiar with the English language and also that the Complainant may be unduly disadvantaged by having to conduct the proceedings in Chinese. As for a) and b) of the Complainant’s submissions, the Panel is doubtful as to how they may be relevant. Furthermore, the Panel notes that all of the communications from the Center to the parties were transmitted in both Chinese and English. Having considered all the circumstances of this case, the Panel determines that English is the language of the proceeding.
The Complainant’s registered trade mark, HIFX is the dominant portion of the Domain Name. The addition of the geographical term “asia” does nothing to minimise the risk of confusion. Moreover, for the purposes of assessing identity and confusing similarity under paragraph 4(a)(i) of the Policy it is permissible for the Panel to ignore the generic domain suffix “.com”. The Panel finds that the Domain Name is identical or confusingly similar to a trade mark in which the Complainant has rights.
The Complainant alleges that the use of a trade mark identical to the HIFX Trade Mark in the Domain Name and the Complainant’s trading information on the Website presents a real risk of confusion and prejudice to the Complainant. The Panel infers from these allegations that the Complainant has not authorized the Respondent to do any of the above.
The Panel finds that the Complainant has made out a prima facie case, a case calling for an answer from the Respondent. The Respondent has not responded and the Panel is unable to conceive of any basis upon which the Respondent could sensibly be said to have any rights or legitimate interests in respect of the Domain Name.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
The Complainant has not provided any background information about the Complainant’s business. Nevertheless, the Panel is satisfied that the Respondent must have been aware of the Complainant’s HIFX Trade Mark and its services when it registered the Domain Name. The Complainant’s trade mark registration pre-dates the Domain Name. Further, the Website contains some of the Complainant’s trading information so as to give the impression that it is part of or associated to the Complainant. The above is sufficient to conclude that the registration of the Domain Name was in bad faith and that the Respondent is using the Domain Name in bad faith.
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, <hifx-asia.com>, be transferred to the Complainant.
Dated: May 31, 2011
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