Complainant is Oanda Corporation of New York, New York, United States of America (“United States” or “US”), represented by Faegre Baker Daniels LLP, United States.
Respondent is WhoisGuard Protected, WhoisGuard, Inc. of Panama, Panama / Michael Dixon of Novato, California, United States. 2. The Domain Name and Registrar
The disputed domain name is registered with NameCheap, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 1, 2018. On November 1, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same day, 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 Complainant on November 6, 2018 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on November 7, 2018.
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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on November 9, 2018. In accordance with the Rules, paragraph 5, the due date for Response was November 29, 2018. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on November 30, 2018.
The Center appointed Lynda J. Zadra-Symes as the sole panelist in this matter on December 19, 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
Complainant is the owner of the mark OANDA which it uses in connection with currency exchange and financial information services in the United States. Complainant is the owner of US Trademark Registration No. 2874938, registered August 17, 2004. Complainant also owns registrations for the OANDA mark in Australia, Canada, China (including Hong Kong and Taiwan Province), European Union, Japan, Singapore and the United Kingdom. Complainant also owns the domain name which it registered in December of 1997 and which it uses to advertise and provide information regarding its financial services.
Respondent registered the disputed domain name on April 27, 2018. The disputed domain name resolves to a website displaying Complainant’s OANDA mark in connection with an online financial trading platform. 5. Parties’ Contentions A. Complainant
Complainant contends that the disputed domain name is confusingly similar to its OANDA trademark, that Respondent has no rights or legitimate interests in respect of the disputed domain name and that the disputed domain name has been registered and used in bad faith. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
In order to succeed in its claim, Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests with respect to the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Paragraph 15(a) of the Rules instructs the Panel to decide a complaint “on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”. A. Identical or Confusingly Similar
Complainant has demonstrated that it has rights in the trademark registrations referenced above. The disputed domain name incorporates Complainant’s mark in its entirety and adds the term “crypto,” which is a generic abbreviation of the word “cryptocurrency”. This additional term is related to Complainant’s financial services and does not add any distinguishing feature.
Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark. B. Rights or Legitimate Interests
There is no evidence in the record suggesting that Respondent is commonly known by the disputed domain name or by the mark OANDA.
Complainant contends that Respondent is not sponsored by or affiliated with Complainant. Respondent’s web pages at the disputed domain name prominently display Complainant’s OANDA mark in connection with an online financial trading platform. Complainant has not consented to Respondent’s use of its mark.
Respondent is not making a bona fide offering of goods or services, nor a legitimate noncommercial or fair use of the disputed domain name. Respondent’s use of Complainant’s mark is unauthorized. Respondent likely chose the disputed domain name in order to create an association with Complainant. Such unauthorized use is not a bona fide offering of services and does not create rights or legitimate interests for Respondent. In addition, Respondent’s website states that “OANDA Corporation is a registered Futures Commission Merchant and Retail Foreign Exchange Dealer with the Commodity Futures Trading Commission and is a member of the National Futures Association. No: 0325821”. This language is identical to the language found on Complainant’s website and also uses Complainant’s real registration number with the National Futures Association. Complainant contends that there is no record of Respondent or “Oanda Crypto” being listed as a regulated entity on the National Futures Association’s website. The record indicates that Respondent is attempting to capitalize on Complainant’s reputation and goodwill in the OANDA mark to direct Internet users to Respondent’s website for commercial gain.
The Panel finds that Complainant has satisfied the requirement of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
By registering the disputed domain name incorporating Complainant’s mark with the generic abbreviation “crypto”, Respondent has demonstrated a knowledge of and familiarity with Complainant’s trademark and business. This is also supported by the statement on Respondent’s copied directly from Complainant’s website, including Complainant’s actual registration number with the National Futures Association. This is a fraudulent use of Complainant’s registration number to falsely present Respondent as a legitimate forex broker. The evidence of record indicates that Respondent has registered the disputed domain name to create a likelihood of confusion with Complainant’s mark and take advantage of Internet traffic generated by Complainant’s prospective customers.
Accordingly, the Panel finds that Respondent has registered and used the disputed domain name 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 Complainant.
Lynda J. Zadra-Symes
Sole Panelist
Date: January 12, 2019
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