WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
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)
Case No. D2020-2809
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 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), China.
2. The Domain Name and Registrar
The disputed domain name <fxcm.love> is registered with Chengdu West Dimension Digital Technology Co., Ltd. (the “Registrar”).
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on October 23, 2020. On October 26, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 27, 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 November 13, 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 in English on November 17, 2020.
On November 12, 2020, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On November 17, 2020, the Complainant submitted a request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding.
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 in English and Chinese of the Complaint, and the proceeding commenced on November 23, 2020. In accordance with the Rules, paragraph 5, the due date for Response was December 13, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 18, 2020.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on January 15, 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
A. Complainant
The Complainant is a company incorporated in the United States, and a leading global provider, since 1999, of online Forex (foreign exchange) and CFD (contracts for difference) trading and related services, operating under the trade mark FXCM (the “Trade Mark”).
The Complainant is the owner of registrations in jurisdictions worldwide for the Trade Mark, including United States registration No. 2620953, with a registration date of September 17, 2002.
The Complainant is also the owner of numerous domain names comprising the Trade Mark, including <fxcm.com>, registered since July 1, 1999.
B. Respondent
The Respondent is 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), located in China.
C. The Disputed Domain Name
The disputed domain name was registered on June 24, 2020.
D. Use of the Disputed Domain Name
The disputed domain name has not been used.
5. Parties’ Contentions
A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Mark; 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.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1. Language of the Proceeding
The language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11(a), in the absence of an agreement between the Parties, or unless specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement.
Paragraph 11(a) of the Rules allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding, in order to ensure fairness to the Parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the Parties and undue delay to the proceeding.
The Complainant has requested that the language of the proceeding be English, for several reasons, including:
(i) The Complainant has conducted reverse WhoIs searches which demonstrate that the Respondent is the owner of a large number of English language domain names, some of which have previously been resolved to websites with English language content;
(ii) The above searches suggest that the Respondent has some understanding of English;
(iii) Requiring the Complainant to translate the Complaint into Chinese would create an undue burden and delay; and
(v) Accepting the Complaint as filed would not cause unfairness to either Party.
The Respondent did not file a response and did not file any submissions regarding the language of the proceeding.
In exercising its discretion to use a language other than that of the Registration Agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both Parties, taking into account all relevant circumstances of the case, including matters such as the Parties’ ability to understand and use the proposed language, time and costs.
Although there is insufficient evidence before the Panel to support a firm conclusion that the Respondent is conversant in English, equally, there is no evidence to support the conclusion that the Respondent is not conversant in English. The Respondent has chosen not to contest this proceeding, and all of the Center’s communications with the Parties have been sent in English and Chinese.
The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner.
In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English.
6.2. Substantive Elements of the Policy
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration.
Disregarding the generic Top-Level Domain (“gTLD”) “.love”, the disputed domain name is identical to the Trade Mark. The Panel therefore finds that the disputed domain name is identical to the Trade Mark.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name:
(i) before any notice to the respondent 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 (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent 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.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, there is no evidence that the disputed domain name has been used.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name; and there has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
Moreover, the disputed domain name that is identical to the Complainant’s Trade Mark carries a high risk of implied affiliation. See section 2.5.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
The Panel finds that the Respondent has failed to produce any evidence to rebut the Complainant’s prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Panel therefore finds that the Respondent lacks rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
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.
For all the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used in bad faith.
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 disputed domain name <fxcm.love> be transferred to the Complainant.
Sebastian M.W. Hughes
Sole Panelist
Dated: February 10, 2021
