The Complainant is FIL Limited, United Kingdom, represented by Maucher Jenkins, United Kingdom.
The Respondent is Adam Crawford, Nigeria. 2. The Domain Name and Registrar
The disputed domain name is registered with 1&1 IONOS Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 6, 2019. On August 6, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 9, 2019, 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 August 12, 2019, 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 August 13, 2019.
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 the Respondent of the Complaint, and the proceedings commenced on August 16, 2019. In accordance with the Rules, paragraph 5, the due date for Response was September 5, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 6, 2019.
The Center appointed Martin Schwimmer as the sole panelist in this matter on September 26, 2019. 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, one of the largest financial services providers in the world, has used and has owned registrations covering the FIDELITY trademark for many years, for example European Union (“E.U”) Registration No. 3844925 for FIDELITY, registered on September 21, 2005. The Respondent registered the disputed domain name on January 29, 2019. The Respondent uses the disputed domain name to offer a website depicting the offerings of a financial services company, purporting to originate with “Fidelity Finances.” The Complainant asserts that the website is part of a phishing or malware scheme. 5. Parties’ Contentions A. Complainant
The Complainant asserts it is the largest and best-known investment fund manager in the world. It offers financial services under the FIDELITY brand worldwide, using trademarks that incorporate the Fidelity name, including FIDELITY, FIDELITY INVESTMENTS, and FIDELITY INTERNATIONAL (the “FIDELITY Marks” or the “Marks), either through itself, its subsidiaries, or through related companies, including its United States of America “sister” company, FMR LLC. It owns registrations for the Marks, including E.U. Registration No. 3844925 for FIDELITY, and E.U. Registration no. 3844727 for FIDELITY INVESTMENTS.
The Complainant further asserts it has invested substantially in advertising and promoting its services under the FIDELITY Marks, in Europe and internationally, in print and online. The Complainant asserts use of various FIDELITY domain names to promote services under the FIDELITY Marks including , , and , which websites display use of the FIDELITY Marks in relation to a broad range of financial services, including fund management.
The Complainant asserts the disputed domain name is confusingly similar to the FIDELITY Marks. The only distinctive element within the disputed domain name is the word “fidelity.” The additional term “finances” describes an aspect of the Complainant’s services.
Accordingly, the average consumer encountering the disputed domain name would assume that it links to a website that is connected to the Complainant, and the mere addition of generic or descriptive terms does not avoid confusion between the disputed domain name and the Complainant’s Marks.
The Complainant asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent is not authorized or permitted to use the Complainant’s FIDELITY Marks. The Respondent is not making noncommercial or fair use of the disputed domain name or using it in connection with bona fide offering of goods or services.
The Complainant provided print-outs from the Respondent’s website, which content appears to promote a financial firm named Fidelity Finances. However, all contact information on the website is fictitious, as are representations relating to the firm’s alleged incorporation, and accreditation with financial licensing agencies. The website appears to solicit investments. The website also contains forms allowing for ‘registration’ to receive information about purported financial services, and for applying for jobs as well. The Complainant asserts that the purpose of the website is some form of fraud or phishing.
The use of the well-known FIDELITY Marks in connection with a fraud of phishing scheme, is an example of bad faith registration. The Respondent has used the disputed domain name to attract Internet users to its website for commercial gain by creating a likelihood of confusion as to source, sponsorship, affiliation or endorsement by the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complainant provided extensive evidence of its use and registration of the FIDELITY Marks, which use and registration easily pre-dating the registration of the disputed domain name.
The disputed domain name incorporates the Complainant’s FIDELITY mark in its entirety. The term “finances” describes an aspect of the Complainant’s services and therefore does not prevent a finding of a confusing similarity between the disputed domain name and the Complainant’s FIDELITY Marks.
As UDRP panels typically disregard the generic Top-Level Domain (“gTLD”) in which a domain name is registered, (in this case, “.net”), the Panel finds that the disputed domain name is confusingly similar to the Complainant’s registered FIDELITY trademark.
Therefore, the Complainant has established the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in the trademark FIDELITY, and showing that the disputed domain name is confusingly similar to this trademark. B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights to or legitimate interests in the disputed domain name by demonstrating any of the following:
- before any notice to it of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or name corresponding to the domain name in connection with a bona fide offering of goods or services; or
- the respondent has been commonly known by the domain name even if it has acquired no trademark or service mark rights; or
- the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleading divert consumers or to tarnish the trademark or service mark at issue.
The Respondent did not answer the Complaint. Consequently, it did not provide any evidence or allege any circumstances to establish that it has rights or legitimate interests in the disputed domain name.
The Complainant has not authorized or permitted the Respondent to use its FIDELITY Marks. Nor is the Respondent making any legitimate noncommercial or fair use of the disputed domain name. As discussed further below, the Respondent is not using the disputed domain name or a name corresponding to it in connection with a bona fide offering of goods or services. Nor is the Respondent making any legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the Complainant’s FIDELITY Marks.
In the circumstances of this case, the Panel finds that the Complainant has established a prima facie case of the Respondent’s lack of rights or legitimate interests in relation to the disputed domain name, which the Respondent has not rebutted. The condition of paragraph 4(a)(ii) of the Policy has therefore been satisfied. C. Registered and Used in Bad Faith
The Respondent’s website depicts, in part, a landing page in which the name “Fidelity Finances” is the sole source identifier. The use of a stock ticker, and graphics and text promoting popular investment topics such as bitcoin and “clean energy” are intended to mimic an authentic investment website. Close inspection of the text reveal typos, grammatical mistakes, and dubious claims, such as offers of investments returning 40% profit within 30 days.
The Complainant asserts that the website is intended to be used for malware and/or phishing purposes. While that particular motivation has not been proven conclusively, that is not necessary for the Panel to conclude that, in view of the Complainant’s well-known FIDELITY trademark in connection with financial services, the Respondent’s creation of a fictitious financial services website with the Fidelity Finances” heading, can only be a bad faith attempt by the Respondent to disrupt the Complainant’s business in some way, or to take advantage of the Complainant’s good will and reputation. The provision of false contact information in both the WhoIs database and on the website itself is further evidence of that conclusion.
The Panel finds that the Respondent registered and used the dispute 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 the Complainant.
Martin Schwimmer
Sole Panelist
Date: October 11, 2019
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