WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Activtrades PLC v. PrivacyP / Activtrades Ltd, Jean Pierre Case No. D2010-0078 1. The Parties
The Complainant is Activtrades PLC of London, United Kingdom of Great Britain and Northern Ireland, represented internally.
The Respondent is PrivacyP / Activtrades Ltd, Jean Pierre of Moergestel, Null, the Netherlands / London, United Kingdom of Great Britain and Northern Ireland. 2. The Domain Name and Registrar
The disputed domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 15, 2010. On January 18, 2010, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR a request for registrar verification in connection with the disputed domain name. On January 21, 2010, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR 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 January 21, 2010 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 January 27, 2010. 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 January 28, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was February 17, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on February 18, 2010.
The Center appointed David Perkins as the sole panelist in this matter on February 24, 2010. 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 4.A The Complainant
4.A.1 The Complainant was incorporated as Activtrades Limited, a private company, on February 17, 2005 and on becoming a public limited company, changed its name on July 15, 2009 to Activtrades PLC.
4.A.2 The Complainant is engaged in the provision of financial brokerage services and is authorised and regulated by the Financial Services Authority (FSA) in the United Kingdom. It provides access for trading in Future and Options (CFDs) and Forex. The ACTIVTRADES trademark
4.A.3 The Complainant is the proprietor of Community Trade Mark No. CTM 004411815 for the mark ACTIVTRADES in Classes 16, 25, 36, 38 and 42, which was applied for on April 28, 2005 and was registered on May 18, 2006. The ACTIVTRADES domain names
4.A.4 The Complainant is the registrant of the domain name which was registered on February 16, 2005. It is also the registrant of the domain name which was registered on April 29, 2001. Both domain names resolve to the Complainant's website. 4.B The Respondent
4.B.1 In the absence of a Response, all that is known about the Respondent is derived from the Complaint. The Respondent is the proprietor of the disputed domain name which was registered on September 13, 2009.
4.B.2 That domain name resolves to a website which the Complainant says is a copy of the content of the Complainant's website at its domain name. 5. Parties' Contentions 5.A Complainant Identical or Confusingly Similar
5.A.1 The Complainant's case is that the disputed domain name incorporates its corporate name, Activtrades plc, in its entirety. As stated, the Complainant has traded under the ACTIVTRADES name since February 2005 and has a CTM for the trademark ACTIVTRADES filed in April 2005 and granted in May 2006.
5.A.2 The Complainant refers to action which it has taken to prevent third party unauthorised use of its ACTIVTRADES corporate name and trademark, exhibiting a letter from the United Kingdom Companies Registry dated October 31, 2009. That letter upholds the Complainant's objection to an attempt by a third party to register as a corporate name “Activtrades (UK) Limited” as being “too like” the Complainant's corporate name. Rights or Legitimate Interests
5.A.3 The Complainant states that the website to which the disputed domain name resolves is a copy of the content of its own website at “www.”. The content of the Complainant's website is governed by the regulations of the FSA.
5.A.4 The Complainant says that the Respondent has no legitimate reason to purport to be or to represent Activtrades plc. Further, the Complainant says that the Respondent is not authorised by the FSA and, consequently, its website to which the disputed domain name resolves is in breach of FSA regulations and unlawful. Registered and Used in Bad Faith
5.A.5 The Complainant's case is that the Respondent's registration and use of the disputed domain name falls within the circumstances set out in paragraph 4(b)(iv) of the Policy.
5.A.6 Not only is the website to which the disputed domain name resolves a copy of the Complainant's website, it also contains an additional Chinese section which the Complainant does not promote. 5.B Respondent
No Response has been filed. 6. Discussion and Findings
6.1 The Policy paragraph 4(a) provides that the Complainant must prove each of the following in order to succeed in an administrative proceeding:
(i) that the Respondent's domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) that the domain name has been registered and is being used in bad faith.
6.2 The Policy paragraph 4(c) sets out circumstances which, in particular but without limitation, if found by the Panel to be proved shall demonstrate the Respondent's rights or legitimate interest in the domain name in issue.
6.3 The Policy paragraph 4(b) sets out circumstances which, again in particular but without limitation, if found by the Panel to be present shall be evidence of the registration and use of a domain name in bad faith.
6.4 As stated, the circumstances set out in paragraph 4(b) and 4(c) of the Policy are not exclusionary. They are without limitation. That is, the Policy expressly recognizes that other circumstances can be evidence relevant the requirements of paragraphs 4(a)(ii) and (iii) of the Policy. Identical or Confusingly Similar
6.5 The Complainant clearly has rights in the ACTIVTRADES corporate name and mark dating from early 2005.
6.6 The disputed domain name incorporates that name and mark in its entirety. It further incorporates the “plc” suffix reflecting the Complainant's change of status in July 2009 to a Public Limited Company, for which the abbreviation is “plc”. Unquestionably, the disputed domain is confusingly similar to the Complainant's ACTIVTRADES trademark and, accordingly, the Complaint satisfies the requirements of paragraph 4(a)(i) of the Policy. Rights or Legitimate Interests
6.7 In the absence of a Response, there is no evidence before the Panel as to whether the Respondent could have demonstrated that any of the circumstances set out in paragraph 4(c) of the Policy apply. However, the evidence presented by the Complainant quite clearly shows that none of those circumstances arise in this case.
6.8 The disputed domain was registered in September 2009. That is some 4½ years after the Complainant commenced operating under the ACTIVTRADES name and, strikingly, two months after the Complainant's change from a private company to a public limited company - PLC - which suffix the Respondent has adopted in the disputed domain name. That, coupled with the manner of use of the disputed domain name - namely, using that domain name to resolve to a “copy” of the Complainant's website - is a clear indication of lack of bona fide or fair use of that domain name.
6.9 Accordingly, the Complaint satisfies paragraph 4(a)(ii) of the Policy. Registered and Used in Bad Faith
6.10 As stated in paragraph 6.8 above, the disputed domain was registered some years after the Complainant began using its ACTIVTRADES name and is currently being used to operate a near facsimile of the Complainant's website. These facts fall fair and square within paragraph 4(b)(iv) and, accordingly, the Complaint satisfies the requirements of paragraph 4(a)(iii) of the Policy. 7. Comment
As noted in paragraph 3 above, an Amended Complaint was filed in this case to remedy deficiencies in the original Complaint filed on January 15, 2010. Although the procedure under the Policy is designed to be suitable for use without employing legal counsel, complainants must remember that normally their case must be fully made out in the complaint and that only exceptionally will the Panel order or permit submission of further statements or documents by the parties: paragraph 12 of the Rules. Accordingly, it is important for a complainant to ensure that its complaint is fully particularised in accordance with paragraph 3 of the Rules. Consequently, prudence may dictate that a complainant should consider obtaining advice from a professional with experience of handling cases brought under the Policy. In this case, the information provided even in the Amended Complaint was minimal. However, fortunately for the Complainant, on the evidence presented, it is clear that all the requirements of paragraph 4(a) of the Policy have been met. 8. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to the Complainant.
David Perkins
Sole Panelist
Dated: March 4, 2010
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