WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

IMC Trading B.V. v. Easy FX, Easy FX Solutions

Case No. D2020-3389

1. The Parties

Complainant is IMC Trading B.V., Netherlands, represented by Merkenbureau Knijff & Partners B.V., Netherlands.

Respondent is Easy FX, Easy FX Solutions, Vanuatu.

2. The Domain Name and Registrar

The disputed domain name <imctrades.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 14, 2020. On December 14, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 16, 2020, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on January 20, 2021. In accordance with the Rules, paragraph 5, the due date for Response was February 9, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on February 18, 2021.

The Center appointed Gabriel F. Leonardos as the sole panelist in this matter on March 8, 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

Complainant, IMC Trading B.V., is one of the world’s most active proprietary trading firm and market maker for various financial instruments listed on exchanges throughout the world. The company was founded in 1989 by two traders working on the floor of the Amsterdam Equity Options Exchange.

Today, IMC Trading B.V. employs over 800 people and owns offices in Amsterdam, Chicago, Sydney and Hong Kong, China. In 30 years, the company has grown internationally, trading primarily on the basis of data and algorithms, and using its execution platform to provide liquidity to financial markets globally.

In light of the above, considering the valuable goodwill and reputation incorporated by IMC TRADING, Complainant has filed International trademarks registrations – for services related to financial affair,investment services, business and capital management and wealth / asset management - in order to protect its investments and rights over the financial services that the company provides, for example:

It is also important to note that Complainant is the owner of the trade name IMC TRADING B.V. since October 5, 1990, and of its official domain name <imc.com> since December 28, 1997, while the disputed domain name <imctrades.com> was registered by Respondent on July 31, 2019 – many years after the registration of Complainant’s trade name, domain name and trademarks.

At last, Complainant informed that, although Respondent is the holder of the disputed domain name <imctrades.com>, it seems that this domain name is operated by the company KBS Capital Markets Ltd. At the time of filing the Complaint, the disputed domain name was actively used to offer financial and trade services, which are very similar to the services offered by Complainant.

5. Parties’ Contentions

A. Complainant

Complainant submits that the disputed domain name <imctrades.com>, of which the first three letters “imc” are the most distinctive part, is confusingly similar to Complainant’s registered trademarks, trade name and domain name – all containing “IMC”.

In addition, Complainant affirms that the expression “IMCTRADES” - fully incorporated in the disputed domain name <imctrades.com> - is visually, phonetically, phonetically and conceptually very similar to Complainant’s trade name IMC Trading B.V. and registered trademark IMC TRADING.

Complainant also says that the disputed domain name is actively used to offer financial and trade services, which are very similar to the services offered by Complainant. Thus, Complainant states that consumers, when visiting the website hosted by the disputed domain name <imctrades.com>, will reasonably believe that it is associated or affiliated with IMC TRADING B.V. However, Respondent is not sponsored by or affiliated with Complainant, nor is licensed, authorized, or otherwise permitted to use its registered trademark or trade name.

Considering this scenario, Complainant believes that the similarities mentioned hereto are persuading its consumers to wrongly believe that the website under the disputed domain name has any association with IMC TRADING B.V., what is not true, fulfilling paragraph 4(a)(i) of the Policy and paragraph 3(b)(viii), (b)(ix)(1) of the Rules.

Furthermore, Complainant affirms that KBS Capital Markets, which operates the disputed domain name <imctrades.com>, does not have any rights or legitimate interests in respect of the sign IMC TRADES, since (i) it has no prior right to the sign; (ii) there is no evidence of use of the disputed domain name in connection with a fair use or a bona fide offering of goods and services; and (iii) neither Respondent nor KBS Capital Markets are commonly known by the disputed domain name. Therefore, paragraph 4(a)(ii) of the Policy and paragraph 3(b)(ix)(2) of the Rules would be also fulfilled.

Moreover, Complainant affirms that the page hosted by the disputed domain name <imctrades.com> mentions that “IMCTRADES is a member of an established international financial services group set up in 1989”. However, Complainant was established in 1989, which implies an affiliation with and/or an endorsement by Complainant of IMC TRADES site and/or services.

Complainant also states that there are various sources indicating that the disputed domain name <imctrades.com> is used for fraud (scam) purpose and it has been even included in a “blacklist” by the Italian government.

ln conclusion, Complainant alleges that Respondent intentionally attempts to attract, for commercial gain, consumers to its website, creating a likelihood of confusion with Complainant and its trademark as to the source, sponsorship, affiliation or endorsement of Respondent's website, which constitutes registration and use in bad faith pursuant to paragraph 4(b)(iv) of the Policy.

Thus, Complainant sustains that paragraph 4(a)(iii) and 4(b) of the Policy and paragraph (b)(ix)(3) of the Rules would have been fulfilled.

B. Respondent

Respondent did not reply to Complainant’s contentions.

6. Discussion and Findings

To succeed in an UDRP complaint, complainants must demonstrate that all the elements listed in paragraph 4(a) of the Policy have been satisfied, as following:

(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) 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 burden of proving these elements is upon Complainant.

Respondent had 20 days to submit a response in accordance with paragraph 5(a) of the Rules and failed to do so. Paragraph 5(f) of the Rules establishes that if a respondent does not respond to the Complaint, the Panel’s decision shall be based upon the Complaint.

A. Identical or Confusingly Similar

Complainant showed that it owns International trademark registrations for IMC (registration number 929842) and IMC TRADING (registration number 1488678) and that its influence and fame in the financial segment predate the registration of the disputed domain name by Respondent.

The Panel finds that, in the present case, the disputed domain name <imctrades.com> does not only incorporates the entirety of Complainant’s trademark IMC, but it is also followed by the term “trades” which is almost identical to the term “trading”, which composes the trademark IMC TRADING, and given that IMC is a very famous company in the financial market, the use of the sign IMC followed by the word “trade” – commonly used in association of such market – may lead consumers to easily associate the disputed domain name <imctrades.com> with Complainant and its services provided under the trademark IMC / IMC TRADING.

Thus, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark and that the requirements of the first element of paragraph 4(a) of the Policy are satisfied.

B. Rights or Legitimate Interests

The consensus view of UDRP panels on the burden of proof under paragraph 4(a)(ii) of the Policy is summarized in section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) as follows: “[w]hile the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of ‘proving a negative’, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.”

In this case, noting the facts and contentions listed above, the Panel finds that Complainant has made a prima facie showing that Respondent lacks rights or legitimate interests, so the burden of production shifts to Respondent. As Respondent has not replied to Complainant’s contentions, that burden has not been discharged, and the Panel has considered Complainant’s prima facie case to be sufficient to demonstrate that Respondent has no rights or legitimate interests in the disputed domain name <imctrades.com>.

Therefore, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name (Policy, paragraph 4(a)(ii)).

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy lists a number of circumstances that, without limitation, are deemed evidence of the registration and use of a domain name in bad faith. Those circumstances include: “(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or location.”

Firstly, the Panel finds that it is highly unlikely that Respondent had no knowledge of Complainant’s rights to the trademark IMC TRADING at the time of registration of the disputed domain name, especially because Complainant is a well-know firm in the financial market, which is a restrict and specific shield. Thus, by a quick search at search engine of the word “imc trade”, the first result shown is IMC Trading B.V.’s website, followed by a Wikipedia page on the Complainant’s business. Besides that the Complainant is the owner of the trade name IMC TRADING B.V. since October 5, 1990, and of its official domain name <imc.com> since December 28, 1997, while the disputed domain name <imctrades.com> was only registered by Respondent on July 31, 2019. It is therefore notorious that Respondent was aware of Complainant’s business and had the intention of making a misleading association with Complainant when registering the disputed domain name.

The evidences also show that Respondent was likely trying to promote its business by creating a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of its services. For the Panel, an evidence of bad faith is the fact that the page hosted by the disputed domain name <imctrades.com> mentions that “IMCTRADES is a member of an established international financial services group set up in 1989”, when Complainant was established precisely in 1989. Therefore, it would be an exaggerated coincidence for a company named IMC TRADES to be affiliated with another company founded in 1989 other than IMC TRADING. It is worth mentioning that Respondent, on its website, does not even mention the name of this parent company, but simply says that it was founded in 1989. In this sense, it would be reasonable for the consumer to assume that there is an affiliation or an endorsement by Complainant of IMC TRADES’ services.

The Panel also notes that there are various sources – including governmental ones - indicating that the disputed domain name <imctrades.com> is used for fraud (scam) purpose and it has been even included in a “blacklist” by the Italian government, which is duly proved by Complainant in Annexes 11 to 16 of the Complaint. Such situation inevitably diminishes any credibility that Respondent may have.

Lastly, in conjunction with all the abovementioned, the fact that Respondent did not present any response to the Complaint reinforces Panel’s conclusion that Respondent is acting in bad faith.

Accordingly, the Panel concludes that the disputed domain name was registered and is being used in bad faith under paragraph 4(b)(iv) of the Policy. As such, the Panel finds that Complainant has satisfied paragraph 4(a)(iii) of the Policy.

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 <imctrades.com> be transferred to Complainant.

Gabriel F. Leonardos
Sole Panelist
Date: March 22, 2021