The Complainant is OANDA Corporation of New York, New York, United States of America, represented by its internal legal counsel.
The Respondent is Richard Williams of London, United Kingdom of Great Britain and Northern Ireland. 2. The Domain Name and Registrar
The Disputed Domain Name is registered with eNom. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 11, 2012. On May 11, 2012, the Center transmitted by email to eNom a request for registrar verification in connection with the Disputed Domain Name. On May 11, 2012, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the Disputed Domain Name.
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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 15, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was June 4, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 7, 2012.
The Center appointed Philip N. Argy as the sole panelist in this matter on June 25, 2012. 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.
All other administrative requirements appear to have been satisfied. 4. Factual Background
The following facts, taken from the Complaint, are uncontested:
The Complainant, established in 1995, operates in the financial services industry and, in particular, as a trader and broker of Contracts For Difference (“CFD”s) in foreign exchange, commodity and equity markets. It also operates a foreign exchange trading platform used by many of the world’s top tier banks. Importantly, the Complainant has an unblemished record, never having been the subject of an adverse complaint or finding by any client or regulatory agency.
The Complainant registered the domain name in 1996 and has used it ever since as its main website. It is the registered proprietor of the trademark OANDA in 10 jurisdictions including, since June 2006, Europe and China.
The Respondent registered the Disputed Domain Name on March 13, 2011, only five days after the incorporation of the legal entity “OANDA Corporation Trading Col, Ltd.”. The Disputed Domain Name resolves to a website which promotes the services of an entity called “OANDA Corporation Trading Co., Ltd.” with an address that corresponds to the address of the Complainant’s subsidiary in Toronto, Canada. The title to the landing page of that website is “OANDA FOREX World Class Online Forex Trading” and, in the website’s “About” section, claims that the promoted entity, solely owned and controlled by one Yong Chen” with an address in Yunnan Province, China, is “the newly formed subsidiary of the UK”. It purports to offer the same products and services as those offered by the Complainant despite not having the requisite regulatory authority to do so and having no connection whatsoever with the Complainant. Numerous consumers, believing they were dealing with the Complainant or a related company of the Complainant, have lost funds and consequently complained to the Complainant and to regulatory agencies. This is severely damaging the Complainant’s impeccable reputation and goodwill as well as causing public harm. 5. Parties’ Contentions A. Complainant
The Complaint is entitled by naming OANDA Corporation Trading Co Ltd as the only respondent. It goes on to describe Richard Williams, the sole registrant of the Disputed Domain Name, as the “First Respondent” and “OANDA Corporation Trading Co., Ltd.” as the “Second Respondent”, and then notes that it refers to the individual and corporate respondents thereafter as the “Respondent”.
The Complainant contends that the Disputed Domain Name is deceptively similar to its registered trademarks for OANDA, that the Respondent has no rights or legitimate interests in the Disputed Domain Name, and that the Disputed Domain Name was registered and is being used in bad faith.
It says that the Respondent is using the Complainant’s trademark OANDA in contravention of trademark law, that it is trading illegally, passing itself off as the Complainant, and causing significant public harm as well as serious damage to the Complainant’s reputation. Noting that the trademark OANDA is entirely an invented word with no meaning in English, Mandarin or Cantonese, and that CFD is a globally recognized abbreviation for Contracts For Difference financial products, the Complainant says that the Disputed Domain Name is seriously deceptively similar to its OANDA trademarks as the suffixation of “CFD” compounds, if not perfects, the confusion. Indeed the Complaint includes numerous examples of actual customer deception.
The Complainant has not authorized the Respondent to use its OANDA trademark nor to represent it in any way shape or form. Financial services being offered through the website to which the Disputed Domain Name resolves and therefore the Respondent can have no rights or legitimate interests in the Disputed Domain Name.
The Respondent holds none of the regulatory approvals needed to offer the products and services that are offered on the website to which the Disputed Domain Name resolves. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
The naming of OANDA Corporation Trading Co., Ltd. as respondent in the title to the Complaint, and the undifferentiated references to the Respondent and that entity in the Complaint are very unhelpful and confusing if not impermissible. There is no basis whatsoever under the Policy for the inclusion as a respondent of an entity that is not named as a registrant of a disputed domain name in its WhoIs entry. “Richard Williams” is the sole recorded registrant of the Disputed Domain Name and can be the only respondent in this proceeding. The Complainant bears the onus of proof and must make out each of the grounds of the Policy against the Respondent.
The way that the Complaint has been constructed makes it difficult to distinguish what evidence and what allegations are made against the Respondent, and what allegations and evidence are made against OANDA Corporation Trading Co. Ltd., as the entity promoted on the website to which the Disputed Domain Name resolves. As a consequence, the Complainant comes dangerously close to having both a non-compliant Complaint and a Complaint in which its case against the Respondentcannot be made out by reason of its having inextricably mixed allegations against the Respondent with allegations against an entity that is not a proper party to the proceedings and whose connection with the Respondent has not been demonstrated other than by inference. The Panel draws that inference very reluctantly and only on the basis that OANDA Corporation Trading Co., Ltd is plainly engaged in fraudulent conduct causing significant public harm by use of the website to which the Disputed Domain Name resolves. As explained in section 6C below, the Respondent is the only person named as registrant of the Disputed Domain Name and therefore must be responsible for any use of the Disputed Domain Name.
Were it not for the significant public harm being done and the consequent need for urgency in determining this proceeding, the Panel would have been minded to require the Complainant to recast the Complaint to make it more obvious what allegations it made against the Respondent and how its allegations against OANDA Corporation Trading Co., Ltd. were relevant to the issues the Panel is required to determine under the Policy.
The Panel nevertheless has to ensure that the Complainant has discharged its burden of proof against the Respondent. A. Identical or Confusingly Similar
There is no doubt that the Disputed Domain Name comprises the Complainant’s OANDA trademark with the globally recognized abbreviation “CFD”, which refers to the financial Contracts For Difference products offered by the Complainant.
As the Complainant correctly notes, it has long been accepted that the inclusion in a disputed domain name that includes a complainant’s trademark of matter that is also descriptive of that complainant’s business compounds rather than alleviates the confusing similarity, and the Panel is comfortably satisfied that the principle is applicable to the Disputed Domain Name.
The Panel finds that the Disputed Domain Name is confusingly similar to the Complainant’s OANDA trademarks. B. Rights or Legitimate Interests
If OANDA Corporation Trading Co., Ltd. were a proper party and a respondent to this proceeding the Complainant may have had difficulty persuading the Panel that it had no legitimate interest in reflecting its corporate name and style in a domain name that included OANDA. Since it is not such a party, and the Respondent has no conceivable rights or legitimate interests in respect of the Disputed Domain Name, the Panel is satisfied that the second ground of the Policy is also made out, but only by treating the undifferentiated joint allegations against the Respondent and OANDA Corporation Trading Co., Ltd. as having at least been made against the Respondent. C. Registered and Used in Bad Faith
There is no doubt based on the evidence that has been put before the Panel that the website to which the Disputed Domain Name resolves is being used to defraud the public and that whoever is responsible for that website is engaged in bad faith if not criminal conduct. The Complaint should have directed itself to showing how the Respondent was responsible for that conduct and making good the ground of the Policy relied upon either on first principles or by use of the assistive provisions in paragraph 4(b) of the Policy, by which certain conduct is deemed to constitute registration and use in bad faith. The Complaint does this only weakly and inferentially.
The Disputed Domain Name was registered only five days after the incorporation of OANDA Corporation Trading Co., Ltd. and some 15 years after the Complainant commenced its business. The adoption of the address of the Complainant’s Canadian subsidiary, coupled with the false claim to be a newly incorporated UK subsidiary, impliedly of the Complainant, makes it easy to infer that the Respondent was aware of both the Complainant and OANDA Corporation Trading Co. Ltd. at the time the Disputed Domain Name was registered. The website to which the Disputed Domain Name resolves leaves no doubt that whoever is responsible for that website intends the public to believe that they are dealing with the Complainant or a related entity of the Complainant, and that OANDA Corporation Trading Co., Ltd. is an entity approved by regulatory authorities. It features a photograph of an English-looking gentleman described as the Chief Executive, although no name is given. It features the logos of regulatory and trust agencies normally associated with the Complainant. The Panel presumes that the Complainant is urging regulatory authorities to take appropriate action against OANDA Corporation Trading Co., Ltd. independently of bringing this proceeding.
Despite the poorly adapted arguments and the almost defective structure of the Complaint, the Panel is entitled(indeed, required) under paragraph 15(a) of the Rules to determine the proceedings “in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable” (emphasis added).
A registrant of a domain name determines by its instructions to the relevant registrar the name servers to which that domain will be directed as well as the MX record to be used for any email addresses that include that domain. The conduct engaged in by use of the website to which the Disputed Domain Name resolves therefore has to be imputed to the Respondent since the Respondent as registrant of the Disputed Domain Name has sole control over the landing page to which the Disputed Domain Name is directed and has to be taken to have intended anyone entering the Disputed Domain Name into a browser to view that material. Under ordinary principles the conduct engaged in through the use of the website to which the Disputed Domain Name resolves may be attributed to the Respondent, at least absent any evidence to the contrary and even despite the lack of any other apparent connection between the Respondent and OANDA Corporation Trading Co., Ltd. As registrant of the Disputed Domain Name the Respondent in this case must be imputed with that conduct. Approaching the matter in that way, the Panel finds that the Disputed Domain Name was both registered and is being used in bad faith by the Respondent. 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 be transferred to the Complainant.
Philip N. Argy
Sole Panelist
Dated: July 4, 2012
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