The Complainant is FXCM Global Services, LLC, United States of America, represented by SafeNames Ltd., United Kingdom.
The Respondent is Domain Administrator, United States of America / FXCM Trade, United Kingdom.
The disputed domain name <fxcm-trade.com> is registered with NameSilo, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 11, 2019. On June 11, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 12, 2019, 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 June 13, 2019 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 June 28, 2019.
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 28, 2019. In accordance with the Rules, paragraph 5, the due date for Response was July 18, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 22, 2019.
The Center appointed Wilson Pinheiro Jabur as the sole panelist in this matter on July 29, 2019. 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 founded in 1999, operating as a retail broker in the foreign exchange (“Forex”) market, counting with offices in Germany, Australia, France, Hong Kong, China and South Africa.
It is the owner, amongst others, of the United States of America trademark registration No. 2,620,953 for FXCM, registered on September 17, 2002, and successively renewed in class 36 (Annex 9 to the Complaint).
The disputed domain name <fxcm-trade.com> was registered on February 12, 2019 and used in connection with fraudulent activities. Internet users presently attempting to access the webpage relating to the disputed domain name are warned of “deceptive site ahead… Attackers on fxcm-trade.com may trick you into doing something dangerous like installing software or revealing your personal information”.
The Complainant asserts to be a leading provider of online Forex trading and related services, having achieved a prominent name in these markets and a worldwide reputation, predominantly operating from its main website available at “www.fxcm.com” offering its services in several languages, including, but not limited to English, Chinese, German, French and Italian.
The disputed domain name, <fxcm-trade.com>, under the Complainant’s view, was registered by the Respondent with a clear intention to mislead Internet users, creating a likelihood of confusion with the Complainant’s FXCM trademark.
Moreover, the Complainant asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name given that the Respondent has used the disputed domain name in connection with a phishing scam (Annex 13 to the Complaint), and on fraudulent emails, which cannot be considered a legitimate noncommercial or fair use of the disputed domain name.
As to the registration and use of the disputed domain name in bad faith the Complainant argues that the Respondent was undoubtedly aware of the Complainant and its trademark given that the Respondent replicated the stylistic and thematic of the Complainant’s official website in relation to a phishing scam, which included the use of an email address connected to the disputed domain name, and invoice documents using the Complainant’s logo.
The Respondent did not reply to the Complainant’s contentions.
Paragraph 4(a) of the Policy sets forth the following three requirements which have to be met for this Panel to order the transfer of the disputed domain name to the Complainant:
(i) the disputed 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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The Complainant must prove in this administrative proceeding that each of the aforesaid three elements is present so as to have the disputed domain name transferred to it, according to paragraph 4(a) of the Policy.
The Complainant has shown that it is the owner of registered trademarks for FXCM. The disputed domain name reproduces the Complainant’s trademark with the addition of the term “trade” which is not sufficient to avoid a finding of confusing similarity in the Panel’s view.
The first element of the Policy has been established.
Paragraph 4(c) of the Policy provides a non-exclusive list of circumstances that may indicate a respondent’s rights to or legitimate interests in a domain name. These circumstances are:
(i) before any notice 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) the respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if it has not acquired 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.
As the evidence submitted clearly indicates, the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name given that the disputed domain name has been used in connection with what appears to be a fraudulent scheme depicting the Complainant’s logo in invoices sent by emails in an effective attempt to create confusion. The burden of production has therefore shifted to the Respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests.
The Respondent, in not responding to the Complaint, has failed to invoke any of the circumstances, which could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights or legitimate interests in the disputed domain name. This entitles the Panel to draw any inferences from such default as it considers appropriate, pursuant to paragraph 14(b) of the Rules.
The present use made of the disputed domain name in connection with a webpage that “may trick you into doing something dangerous like installing software or revealing your personal information” cannot be considered a bona fide one.
Under these circumstances and absent evidence to the contrary, the Panel finds that the Respondent does not have rights or legitimate interests with respect to the disputed domain name.
This case presents the following circumstances, which indicate bad faith registration and use of the disputed domain name given that:
i) the disputed domain name was registered on February 12, 2019, which is long after the Complainant was founded and started using its trademark (1999 – Annex 9 to the Complaint);
ii) there are indications that the disputed domain name has been used in connection with fraudulent email scams;
iii) the Respondent has provided no evidence whatsoever of any actual or contemplated good faith use by it of the disputed domain name;
iv) the Respondent evidently was aware of the Complainant and its trademark in view of the contents of the invoices attached with emails sent with email addresses indicating the disputed domain name; and
v) the absence of any reply to the Complaint by the Respondent.
For the reasons above, the Respondent’s conduct has to be considered, in this Panel’s view, as bad faith registration and use of the disputed domain name pursuant to paragraph 4(b)(iv) 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-trade.com> be transferred to the Complainant.
Wilson Pinheiro Jabur
Date: August 12, 2019
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