The Complainant is Admiral Markets Group AS of Tallinn, Estonia, internally represented.
The Respondent is Domain Admin, Whois Privacy Corp. of Nassau, Bahamas. 2. The Domain Name and Registrar
The disputed domain name is registered with Internet Domain Service BS Corp (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 10, 2018. On January 10, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 12, 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 proceedings commenced on January 24, 2018. In accordance with the Rules, paragraph 5, the due date for Response was February 13, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 14, 2018.
The Center appointed Assen Alexiev as the sole panelist in this matter on February 26, 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
The Complainant is part of a group of investment firms operating under the Admiral Markets brand and acting as online trading service providers, offering investment services for trading on the foreign exchange market and with contracts for differences on indices, metals, energies, stocks, bonds and cryptocurrencies.
The Complainant is the owner of the following trademarks (the “ADMIRAL MARKETS trademark”):
- The European Union trademark ADMIRAL MARKETS with registration No. 011680824, registered on September 21, 2013 for services in International Classes 35, 36 and 41; and
- The International trademark ADMIRAL MARKETS with registration No.1177229, registered on July 11, 2013 for services in International Classes 35, 36 and 41.
The Complainant has registered the domain names , , , , and .
The disputed domain name was registered on June 5, 2017 and resolves to a website featuring text criticizing the Complainant. 5. Parties’ Contentions A. Complainant
The Complainant states that the disputed domain name is identical to the ADMIRAL MARKETS trademark since it incorporates the trademark in its entirety.
According to the Complainant, the Respondent does not have any rights or legitimate interests in the disputed domain name. The Respondent is not commonly known by the disputed domain name and has not acquired any relevant trademarks or a license from the Complainant for the use of the ADMIRAL MARKETS trademark. The website at the disputed domain name criticizes the Complainant and provides false information about it with the purpose to bring down the reputation of the Complainant. The Respondent is not making a legitimate noncommercial or fair use of the disputed domain name which would be justified by the principle of free speech, since the Respondent tarnishes the ADMIRAL MARKETS trademark and damages the Complainant’s reputation.
The Complainant contends that the disputed domain name was registered and is being used in bad faith. The Respondent targeted the Complainant when it chose and registered the disputed domain name, which matches the Complainant’s business name and incorporates the ADMIRAL MARKETS trademark in its entirety. The same is evident from the fact that the Respondent’s website cites different aspects of the Complainant’s business. The Respondent is using the disputed domain name in bad faith, since the associated website contains false information about the Complainant and thus tarnishes the ADMIRAL MARKETS trademark and damages the Complainant’s reputation.
The Complainant sent cease and desist letters to the Respondent on October 31, 2017, and on the same date received an answer from the Respondent’s e-mail address, whereby the Respondent did not agree to the demands of the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions.
The only statements of the Respondent on this dispute were included in its response to the Complainant’s cease and desist letter of October 31, 2017. In this response, the Respondent stated that it had published on its website the Complainant’s cease and desist letter and was ready to publish additional statements by the Complainant free of charge. The Respondent did not agree that its use of the ADMIRAL MARKETS trademark was illegal. The Respondent further stated that its website was part of a “conglomerate” of online resources focused on foreign exchange market matters, and that an attack on its website could be followed by the publishing on 150 other websites of original articles against the attacking entity containing links to other sources, which publications in the course of time would alter the search results on search engines like Yandex and Google. The Respondent also mentioned that its “arsenal” included the possibility to increase the publicity of its articles on Youtube, and gave an example in this regard. The Respondent concluded that it had sufficient resources for any “legal or informational war”, but it had other enemies as well, so its aim was not to fight but to co-exist peacefully with the Complainant. Nevertheless, it believed in its legal position and its lawyers were ready to prepare new complaints against the Complainant in addition to the numerous complaints that had already been filed. 6. Discussion and Findings
Pursuant to the Policy, paragraph 4(a), the Complainant must prove each of the following to justify the transfer of the disputed domain name:
(i) the disputed domain name 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 Respondent has registered and is using the disputed domain name in bad faith.
In this case, the Center has employed the required measures to achieve actual notice of the Complaint to the Respondent, in compliance with the Rules, paragraph 2(a), and the Respondent was given a fair opportunity to present its case.
By the Rules, paragraph 5(c)(i), it is expected of a respondent to: “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain-name holder) to retain registration and use of the disputed domain name”.
In this proceeding, the Respondent has not submitted a Response. A. Identical or Confusingly Similar
The Complainant has provided evidence for its registrations of the ADMIRAL MARKETS trademark. This satisfies the Panel that the Complainant has established its rights in the ADMIRAL MARKETS trademark for the purposes of the Policy.
The Panel notes that a common practice has emerged among UDRP panels under the Policy to disregard in appropriate circumstances the generic Top-Level Domain (“gTLD”) section of domain names for the purposes of the comparison under the Policy, paragraph 4(a)(i). The Panel sees no reason not to follow the same approach here, so it will disregard the “.pro” gTLD section of the disputed domain name.
The relevant part of the disputed domain name is therefore “admiralmarkets”, which contains the easily distinguishable words “admiral” and “markets”. The combination of these two words is identical to the word elements of the ADMIRAL MARKETS trademark. In the Panel’s view, this combination in the disputed domain name may lead Internet users to believe that the disputed domain name represents an official online location of the Complainant.
In view of the above, the Panel finds that the disputed domain name is confusingly similar to the ADMIRAL MARKETS trademark in which the Complainant has rights. B. Rights or Legitimate Interests
While the overall burden of proof in UDRP proceedings is on the complainant, UDRP 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. See section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
The Complainant has contended that the Respondent has no rights or legitimate interests in the disputed domain name, stating that the Respondent is not commonly known by the disputed domain name and has not acquired any relevant trademarks or a license from the Complainant for the use of the ADMIRAL MARKETS trademark. According to the Complainant, the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name which would be justified by the principle of free speech, since the website at the disputed domain name provides false information about the Complainant with the purpose to tarnish the ADMIRAL MARKETS trademark and damage the Complainant’s reputation.
The Respondent has not submitted a formal Response and has not alleged that it has rights and legitimate interests in the disputed domain name. In its response to the Complainant’s cease and desist letter, the Respondent has denied any illegal use of the ADMIRAL MARKETS trademark and has stated that if the Complainant commences action against the Respondent’s website, this may lead to the publication of numerous new online articles against the Complainant in a multitude of other websites that are under the Respondent’s control and the Respondent’s lawyers may prepare additional complaints against the Complainant. The Respondent also mentions that rather than “waging a war”, its aim is to “peacefully co-exist” with the Complainant.
The disputed domain name incorporates the ADMIRAL MARKETS trademark entirely. This makes it likely that Internet users may regard the disputed domain name as being an official online location of the Complainant and thus be attracted to it and influenced by the content of the website associated to it. In this regard, previous UDRP panels have found that even a right to criticize does not necessarily extend to using a domain name identical to a trademark, as is the case here. See section 2.6.2 of the WIPO Overview 3.0. The disputed domain name also does not couple a derogatory term such as “sucks” with the Complainant’s ADMIRAL MARKETS trademark to clarify it is not impersonating the Complainant. See section 2.6.3 of the WIPO Overview 3.0. Accordingly, consistent with UDRP panel views on the selection of a domain name identical with a complainant’s trademark, Respondent has no rights or legitimate interests in the disputed domain name.
The Respondent’s website at the disputed domain name contains serious allegations of fraud against the Complainant, but the Respondent has not submitted a Response in this proceeding, has not provided a plausible explanation of its actions and has not denied the Complainant’s statements that the allegations on the Respondent’s website are false, which the Panel would have expected. Further, the Respondent’s reply to the Complainant’s cease and desist letter leaves doubt in the Panel’s mind as to the Respondent’s motivations and to whether the Respondent was attempting to engage in bona fide criticism.
On the basis of the above, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy lists four illustrative circumstances that shall be evidence of the registration and use of a domain name in bad faith by a respondent, namely:
“(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 that 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.”
The provisions of paragraph 4(b) of the Policy are without limitation, and bad faith registration and use may be found on grounds otherwise satisfactory to the Panel.
As discussed above, the disputed domain name incorporates the ADMIRAL MARKETS trademark solely and in its entirety. UDRP panels have found, pursuant to the discussion above regarding the registration of a domain name identical to a trademark, that such use will constitute an unfair impersonation of the Complainant and demonstrates bad faith for purposes of the Policy. See Blue Apron, LLC v. WhoisGuard Protected, WhoisGuard, Inc. / Jason Blackmon,WIPO Case No. D2017-1000; 1IQ PTY LTD v. 1337 Services LLC,WIPO Case No. D2017-2156; Rodeler Limited v. Domain Admin, Whois Privacy Corp.,WIPO Case No. D2017-2316.
While not determinative under this section, the Panel further notes that the Respondent’s website at the disputed domain name contains serious allegations of fraud against the Complainant, but the Respondent has not submitted a Response in this proceeding and has not denied the Complainant’s allegations that the Respondent’s allegations are false. The Panel is concerned from the record that the Respondent may have registered the disputed domain name not for bona fide criticism purposes, but with knowledge of the Complainant and targeting the ADMIRAL MARKETS trademark in an attempt to confuse Internet users and attract them to the Respondent’s website for some other undisclosed purpose
For all the above reasons, the Panel finds 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.
Assen Alexiev
Sole Panelist
Date: March 11, 2018
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