The Complainant is Ironfx Global Limited of Limassol, Cyprus, represented by Loukia Kanarini, Cyprus.
The Respondent is Tang Zhenyin of Shenshi, China; YinSi BaoHu Yi KaiQi of Beijing, China. 2. The Domain Name and Registrar
The disputed domain name (the “Disputed Domain Name”) is registered with HiChina Zhicheng Technology Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 6, 2015. On March 6, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On March 9, 2015, 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 March 9, 2015 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 March 12, 2015.
On March 9, 2015, the Center transmitted an email to the parties in English and Chinese regarding the language of the proceeding. On March 12, 2015, the Respondent submitted its request that Chinese be the language of the proceeding by email to the Center. On March 12, 2015, the Complainant submitted its request that English be the language of the proceeding by email to the Center.
The Center verified that the Complaint and 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 in English and Chinese, and the proceedings commenced on March 16, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was April 5, 2015. The Respondent did not submit any formal response. Accordingly, the Center notified the Respondent’s default on April 7, 2015.
On April 12, 2015, the Respondent submitted an informal Response in Chinese.
The Center appointed Kimberley Chen Nobles as the sole panelist in this matter on April 16, 2015. 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
The Complainant is an on-line foreign exchange derivatives and financial service provider duly registered and existing under the laws of the Republic of Cyprus and is regulated and authorized by the Cyprus Securities and Exchange Commission. The Complainant serves retail and institutional customers in over 180 countries, with offices and employees worldwide, including in Asia. The Complainant has registered the trademark IRONFX (the “IRONFX marks”) in many jurisdictions around the world, including Asia. The Complainant provided evidence of several trademark registrations for its IRONFX marks in Annexes 5 and 6 to the Complaint. The evidence shows that the Complainant’s registrations of the IRONFX marks began at least as early as 2012. The Complainant further provided evidence of its ownership of a domain name utilizing the IRONFX marks, registered in February 2008, as Annex 7 to the Complaint.
The Respondent is Tang Zhenyin of Shenzhen, Guangdong, China; YinSi BaoHu Yi KaiQi of Beijing, China. The Dispured Domain Name was registered on December 24, 2013. 5. Parties’ Contentions A. Complainant
The Disputed Domain Name is identical or confusingly similar to the Complainant’s IRONFX marks. The Respondent has no rights to or legitimate interests in the Disputed Domain Name. The Respondent registered and is using the Disputed Domain Name in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions by the deadline. However, the Respondent submitted an informal response after the deadline for response passed. In its response, the Respondent claims that its website does not effect the identification of visitors, that the Complainant does not have any subsidiaries or conduct business in China, and the use of the Disputed Domain Name does not effect the Complainant’s production. 6. Discussion and Findings A. Language of the Proceeding
The Complainant has requested that English be recognized as the language of the proceeding. The Complainant submits that there is an Introducer Agreement between the Complainant and the Respondent, which is in English. The Complainant therefore submits that the Respondent is familiar with English and that English shall be the language of the proceeding. Evidence of this agreement was provided as Annexes 2 and 3 to the Complaint.
The Respondent has requested that Chinese be the language of the proceeding with the reasons that 1) the Registration Agreement of the Disputed Domain Name is in Chinese and 2) the website at the Disputed Domain Name is in Chinese.
The Panel concludes that English should be the language of the proceeding, taking the following into account that the Disputed Domain Name was registered in ASCII characters using the Roman alphabet, which is used by English speakers; the Introducer Agreement provided by the Complainant between the Complainant and Respondent is in English; the Respondent submitted an informal Response despite of the fact that the Complaint is in English. Therefore, the Panel has reasons to believe that the Respondent is familiar with English.
Where a party fails to present evidence of facts in its control, the panel may draw adverse inferences regarding those facts. Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy's Antiques,WIPO Case No. D2000-0004. Insofar as the Respondent has not formally responded nor provided sufficient evidence, it is appropriate to accept the facts asserted by the Complainant and to draw adverse inferences of fact against the Respondent. Nonetheless, paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(i) the Disputed Domain Name registered by the Respondent 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. B. Identical or Confusingly Similar
To prove this element, the Complainant must have trademark rights and the Disputed Domain Name must be identical or confusingly similar to the Complainant’s trademark.
As stated above, the Complainant is the registered owner of numerous IRONFX marks in a number of jurisdictions. The record shows that the Complainant owned rights in the IRONFX marks before the Disputed Domain Name registration. In light of the foregoing and the Respondent’s failure to provide rebuttal evidence, the Panel finds that the IRONFX marks are distinctive and well-known by the public as indicating the Complainant’s services, and that the Complainant has rights in the IRONFX marks.
The Complainant asserts that the Disputed Domain Name is confusingly similar to its IRONFX marks. The Panel agrees. The Disputed Domain Name incorporates the IRONFX mark in its entirety. It is well established that a domain name is confusingly similar to a mark “when the domain name includes the trademark, or a confusingly similar approximation.” Nicole Kidman v. John Zuccarini, b/b/a Cupcake Party, WIPO Case No. D2000-1415; Six Continent Hotels, Inc. v. The Omnicorp,WIPO Case No. D2005-1249; Research in Motion Limited. v. One Star Global LLC,WIPO Case No. D2009-0227 (“In most cases where a domain name incorporates the entirety of a trade mark, then the domain name will for the purposes of the Policy be confusingly similar to that mark.”); Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr.,WIPO Case No. D2000-1525. Further, the inclusion of the number “8” is insufficient to distinguish the Disputed Domain Name from the Complainant’s IRONFX marks. The inclusion of generic content is insufficient to overcome a finding of confusion, particularly where, as here, the dominant feature of the Disputed Domain Name is a well-known mark. Previous UDRP panels have accepted that “[g]enerally, a user of a mark ‘may not avoid likely confusion by appropriating another’s entire mark and adding descriptive or nondistinctive matter to it.” 3 J. Thomas McCarthy, McCarthy on Trademarks & Unfair Competition § 23:50 (4th ed. 1998). cited in Pfizer Inc. v. United Pharmacy Ltd.,WIPO Case No. D2001-0446. See also Telstra Corporation Limited v. Barry Cheng Kwok Chu,WIPO Case No. D2000-0423.
The Respondent’s informal response does not address whether the Disputed Domain Name is confusingly similar to the Complainant’s IRONFX marks.
In light of the foregoing, the Panel finds that the Disputed Domain Name is confusingly similar to the Complainant’s registered mark and that paragraph 4(a)(i) of the Policy is satisfied. C. Rights or Legitimate Interests
The Panel finds that there is no evidence in the record to indicate that the Respondent has any rights or legitimate interests in the term “IronFX.” A complainant is required to make out an initial prima facie case that the respondent lacks rights or legitimate interests in the domain name. Once such a prima facie case is made, the respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the policy. See Croatia Airlines d. d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455; Belupo d. d. v. WACHEM do.o.,WIPO Case No. D2004-0110. The Panel finds that the Complainant has successfully presented a prima facie case which the Respondent has not rebutted. The Respondent’s late-filed informal response claims, without evidentiary support, that its use of the Disputed Domain Name does not effect the identification of visitors nor the Complainant’s production. Further, the Respondent claims that the Complainant does not conduct business in China. None of Respondent’s claims provide evidence that Respondent has a right or legitimate interest in the Disputed Domain Name. As discussed below, the Panel also finds that the Respondent is not engaged in a bona fide offering of goods or services. There is also no evidence in the record that the Respondent’s use of the Disputed Domain Name is a legitimate noncommercial or fair use, or that the Respondent is commonly known by the Disputed Domain Name.
The Panel finds that the requirements of paragraph 4(a)(ii) of the Policy have been satisfied. D. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states nonexclusive circumstances which, if found, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of the Complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line 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.
As discussed above, the Complainant’s IRONFX marks are distinctive and well known. Further, the Complainant submits that the Respondent was aware of the Complainant’s rights in the IRONFX marks when registering the Disputed Domain Name because the Complainant and Respondent entered into an agreement that pre-dates the registration of the Disputed Domain Name. The Complainant provided evidence of this agreement as Annexes 2 and 3 to the Complaint. Thus, the Respondent was aware of or should have known of the Complainant’s rights in the IRONFX marks when registering the Disputed Domain Name. Further, the record shows that the Complainant owned trademark rights in the IRONFX marks that predate the creation of the Disputed Domain Name and that the Disputed Domain Name contains the Complainant’s mark in its entirety. Further, there is no evidence that the Respondent has any rights in the term “IronFX.” Where a respondent chooses to incorporate a well known mark into a domain name without authorization, “the combination of an identical trademark in a domain name and the ensuing likelihood of initial interest confusion alone ought to be sufficient to demonstrate that the Respondent has no legitimate interest in this case.” General Electric Company, GE Osmonics Inc. v. Optima di Federico Papi,WIPO Case No. D2007-0645. Further, where the mark is well-known and famous, a trader would not legitimately choose it, “unless seeking to create an impression of an association” with the mark’s owner. Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003. The Respondent’s informal response offers no arguments to show this inclusion is not non-distinctive or generic, and, in the absence of a credible explanation, the most likely explanation is that is was chosen with the Complainant’s mark in mind. Associazione Radio Maria v. Mary Martinez / Domains by Proxy, Inc., WIPO Case No. D2010-2181. The Panel finds that the Respondent registered the Disputed Domain Name in bad faith.
The Complainant submits that the Respondent is using the Disputed Domain Name in bad faith. As stated above, the Respondent was aware of the Complainant’s rights in the IRONFX marks prior to the registration of the Disputed Domain Name. The Complainant submitted evidence that the Respondent’s website is a replica of the Complainant’s website, including copyrighted content found thereon, as Annexes 10 and 11 to the Complaint. Further, the Complainant submitted evidence in Annex 16 to the Complaint that the Respondent’s website contains defamatory statements about the Complainant. Based on this, the Panel finds that the Respondent is using the Disputed Domain Name in bad faith.
Given the totality of the circumstances, including the fame of the Complainant’s IRONFX marks, the content of the Respondent’s website, and the Respondent’s failure to provide any rebuttal evidence or arguments, the Panel finds that the Disputed Domain Name is being used in bad faith. The Respondent is attempting to disrupt the Complainant’s business by attracting Internet users to the Respondent’s website via the confusingly similar Disputed Domain Name. Still further, by operating a “replica” website, the Respondent is attempting to create an impression that the Respondent is associated with the Complainant.
In light of the foregoing, the Panel finds that the Respondent registered and is using the Disputed Domain Name in bad faith. Thus, the Panel finds that paragraph 4(a)(iii) of the Policy has been satisfied. 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.
Kimberley Chen Nobles
Sole Panelist
Date: April 30, 2015
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