The Complainant is FXCM Global Services, LLC of New York, New York, United States of America (“United States”), represented by SafeNames Ltd., United Kingdom of Great Britain and Northern Ireland.
The Respondent is FXCM of China. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 10, 2018. On the same day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 11, 2018, the Registrar transmitted by email to the Center its verification response confirming that the 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 the Respondent of the Complaint, and the proceeding commenced on January 15, 2018. In accordance with the Rules, paragraph 5, the due date for Response was February 4, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 5, 2018.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on February 15, 2018. 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 State of Delaware in the United States and was listed on the New York Stock Exchange, and is a provider since 2000 of online forex trading services under the trade mark FXCM (the “Trade Mark”).
The Complainant is the owner of numerous registrations in jurisdictions worldwide for the Trade Mark, including United States registration No. 2620953, registered since September 17, 2002; and international registration No. 872083, registered since December 3, 2004.
The Complainant is also the owner of numerous domain names comprising the Trade Mark together with various different generic Top-Level Domains (“gTLDs”) and country code Top-Level Domains (“ccTLDs”). B. Respondent
According to the information provided from the Registrar, the Respondent is based in China. The identity and contact details of the Respondent are unclear, given the incomplete WhoIs records for the disputed domain name. C. The Disputed Domain Name
The disputed domain name was registered on July 25, 2012. D. The Website at the Disputed Domain Name
The disputed domain name previously resolved to (or otherwise copied the content of) the Complainant’s Chinese language website. The disputed domain name currently resolves to a registrar parking page. 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
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, as outlined in section 4 above.
The disputed domain name incorporates the entirety of the Trade Mark, together with the commonly used abbreviation for China, “cn”. Where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element, see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8.
The Panel therefore finds that the disputed domain name is confusingly similar 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, the disputed domain name has either been redirected to the Complainant’s Chinese language website (or resolved to a website which copied the content of the Complainant’s Chinese language website), or it has not 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.
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. C. Registered and Used in Bad Faith
The undisputed evidence is that the Complainant, a listed company, was one of the early operators of online forex trading, operating under the Trade Mark worldwide, including in China where the Respondent is apparently based. In addition to these factors, the facts the disputed domain name incorporates the Trade Mark in its entirety, and that it has previously been redirected to the Complainant’s Chinese language website (or otherwise to a website which copied the content of the Complainant’s Chinese language website), demonstrate that the Respondent knew of the Complainant and of the Complainant’s rights in the Trade Mark at the time of registration of the disputed domain name.
The Panel further considers that the Respondent has registered the disputed domain name, comprising the Trade Mark together with the commonly used protocol for China (“cn”), in order to give the false impression that the disputed domain name is in fact the Complainant’s domain name.
The Respondent’s failure to provide complete name, contact and address details in the WhoIs search for the disputed domain name provides further evidence of bad faith, see WIPO Overview 3.0, section 3.6.
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 be transferred to the Complainant.
Sebastian M.W. Hughes
Sole Panelist
Dated: March 1, 2018
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