The Complainant is FXDirectDealer, LLC, United States of America (“United States”), represented by Kolitch Romano LLP, United States.
The Respondent is jin chen, chenjin, China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 24, 2020. On June 25, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 25, 2020, 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 July 2, 2020. In accordance with the Rules, paragraph 5, the due date for Response was July 22, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 23, 2020. The Center appointed Andrew D. S. Lothian as the sole panelist in this matter on August 7, 2020. 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 Founded on March 12, 2002, the Complainant is an online foreign exchange trading company offering trading services and tools, including online and cloud services. The Complainant serves a variety of clientele including individual and institutional traders, hedge funds, commercial entities, brokerage firms and money managers globally. It has offered an international platform to clients worldwide since at least May 3, 2012 and currently offers both Chinese and English language versions of its website at “www.fxdd.com”. The Complainant is the owner of a variety of registered trademarks for a family of FXDD formative marks including, for example, United States registered trademark no. 4418706 for the word mark FXDD, registered on October 15, 2013 in international classes 9, 36, and 41. According to the WhoIs record, the disputed domain name was registered on April 4, 2019. Nothing is known about the Respondent other than that it has supplied an address in Guizhou province, China. The Complainant indicates that to the best of its understanding, the Respondent’s provided address does not constitute a complete street address. This appears to be borne out by delivery records relating to the attempted notification of the physical copy of the Complaint upon the Respondent, which state “address information needed”. The disputed domain name points to a Chinese language website displaying pornographic videos, as well as prominent banners providing links to other websites featuring pornographic and online gambling content. Said website also solicits further advertising via an “advertising contact” at a specific email address. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is identical to a trademark in which it owns rights; that the Respondent has no rights or legitimate interests in the disputed domain name; and that the disputed domain name has been registered and is being used in bad faith. The Complainant asserts that it has used the FXDD mark since at least as early as 2002, including at the website at “www.fxdd.com”. The Complainant provides further details of its use of the mark as a source identifier. The Complainant notes that its services are offered to customers worldwide and asserts with reference to two press releases that the Complainant is “the international leader in its online foreign exchange trading and education services” offered under the FXDD mark. The Complainant explains that it has used the FXDD mark in connection with financial market software since 2002 and in connection with foreign exchange trading and related educational services since at least March 2010. The Complainant asserts that it has built up considerable goodwill in such mark. The Complainant notes that the disputed domain name incorporates the Complainant’s mark with a geographic term “cn”, being a widely used abbreviation for China, adding that the addition of such term fails to prevent confusing similarity between the disputed domain name and the Complainant’s mark. The Complainant asserts that consumers will falsely believe that there is a connection between the disputed domain name and the Complainant and that goods or services advertised thereby are sponsored or endorsed by the Complainant. The Complainant submits that the Respondent is not sponsored by or affiliated with the Complainant, has not received any license, authorization or permission to use the Complainant’s FXDD marks in any manner, is not commonly known by the disputed domain name or any name incorporating the letters “fxdd” and has neither used nor made preparations to use such a name in connection with a bona fide offering of goods or services. The Complainant notes that the content of the website associated with the disputed domain name does not include any information suggesting a connection between the Respondent and said letters or any obvious variant. The Complainant states that the Respondent’s actions show an intent to obtain unfair commercial gain by misleadingly diverting consumers via the disputed domain name to a website which displays pornographic content and tarnishes the Complainant’s mark. The Complainant contends that such use cannot be a bona fide offering of goods or services, nor is it fair use, given that it falsely suggests an affiliation with the Complainant. The Complainant adds that to the best of its knowledge, the Respondent cannot claim any legitimate noncommercial or fair use rights in connection with the disputed domain name. The Complainant asserts that the presence of pornographic content on a respondent’s website is sufficient to support a finding of bad faith, irrespective of the respondent’s motivation, with reference to previous cases under the Policy. The Complainant adds that the fact that the disputed domain name is confusingly similar to the Complainant’s FXDD mark creates a presumption of bad faith and notes that the Respondent is attempting to attract Internet users to its website for commercial gain by creating a likelihood of confusion with such mark as to source or sponsorship. Finally, the Complainant contends that it is not relevant whether a visitor to the Respondent’s website would realize that it is not related to the Complainant and that, by way of any such visit, the Complainant’s mark is being tarnished. The Complainant concludes that the Respondent either deliberately ignored, via willful blindness, or actively intended to exploit, the Complainant’s reputation and goodwill, thus evidencing bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings To succeed, the Complainant must demonstrate that all of the elements listed 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 the Complainant has rights; (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. A. Identical or Confusingly Similar The Panel finds that the Complainant has UDRP-relevant rights in its registered trademark FXDD as set out in the factual background section above. In comparing such mark to the disputed domain name, the Panel disregards the generic Top-Level Domain (“gTLD”) “.com” as this is required only for technical reasons. The Panel notes that the disputed domain name incorporates the Complainant’s FXDD trademark in its entirety together with the letters “cn”. The Complainant’s FXDD trademark is the first and most prominent element of the disputed domain name, and is fully recognizable therein. The addition of the letters “cn”, whether or not this is intended as a geographic descriptor or two character country code reference to China, does nothing to prevent the evident confusing similarity between the disputed domain name and the Complainant’s mark. In all of these circumstances, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights and that the Complainant has established the first element under the Policy. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy lists several ways in which the Respondent may demonstrate rights or legitimate interests in the disputed domain name: “Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii): (i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or (iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue”. The consensus of previous decisions under the Policy is that a complainant may establish this element by making out a prima facie case, not rebutted by the respondent, that the respondent has no rights or legitimate interests in the disputed domain name. Once such prima facie case is made out, the burden of production shifts to the respondent to bring forward appropriate allegations and/or evidence demonstrating its rights or legitimate interests in the domain name concerned. In the present case, the Complainant submits that the Respondent is not sponsored by or affiliated with the Complainant, has not received any license, authorization, or permission to use the Complainant’s FXDD marks in any manner, is not commonly known by the disputed domain name or any name incorporating the letters “fxdd” and has neither used nor made preparations to use such a name in connection with a bona fide offering of goods or services. The Complainant also contends that the content of the website associated with the disputed domain name does not include any information suggesting a connection between the Respondent and said letters or any obvious variant. The Panel is satisfied the Complainant’s above-noted submissions on this topic, taken together, constitute a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The burden of production therefore shifts to the Respondent. The Respondent has failed to engage with the administrative proceeding and has not filed any response in this case by which it might have sought to put forward any alleged rights or legitimate interests in the disputed domain name. Considering the matter objectively, the Panel cannot conceive of any rights or legitimate interests which the Respondent might have claimed in the disputed domain name, other than potentially the fact that it has merely stumbled upon the same initial four letters as that of the Complainant’s mark, along with a geographic descriptor (or six random letters with no such descriptor) and is linking these to a variety of pornographic and gambling materials as a bona fide offering of goods and services. There is however nothing on the present record indicating that the Respondent could point to evidential support for that proposition, even had it been put forward. For example, there is no information that the Panel can see on the website associated with the disputed domain name which makes any link whatsoever between the Respondent and the letters “fxdd” or suggests that this, with or without the additional letters “cn” might be a reasonable acronym which is plausibly connected to the Respondent’s name or business activities. The more likely explanation, on the balance of probabilities and in the absence of any Response, is that the Respondent’s selection of the letters “fxdd” is targeted in some way to the Complainant’s FXDD trademark. To the Panel’s eyes, the letters in the Complainant’s mark are a relatively distinctive combination, albeit that “fx” is a widely recognized abbreviation for “foreign exchange”. There is no apparent indication on the present record as to how this term might have any relevance to the Respondent, its business or its website outside the context of the Complainant’s trademark. Within that context, there is reason to suspect that the Respondent seeks to benefit from Internet traffic generated by users seeking the Complainant’s services online, particularly those from or related to China, or those seeking service or support from the Complainant in the Chinese language. In the absence of any attempted rebuttal or explanation from the Respondent, this is the most plausible scenario in the Panel’s view. The Complainant explains that it has been using its mark internationally for some considerable time and provides evidence that its services are available globally with specific reference to the Chinese language, such that it is reasonable to infer that the Respondent has adopted the term in the disputed domain name because it matches the Complainant’s mark with the addition of the letters “cn”, being intended to denote China or the Chinese language. The fact that, on the balance of probabilities, the Respondent is using the Complainant’s mark to divert Internet users who may be looking for the Complainant’s services to pornographic or gambling websites cannot confer any rights or legitimate interests upon it. In all of these circumstances, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name and that the second element under the Policy has been established. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy provides four, non-exclusive, circumstances that, if found by the Panel to be present, 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 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 web site 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 web site or location or of a product or service on your web site or location”. The Complainant primarily focuses on the content of the Respondent’s website and suggests that the presence of pornographic content ipso facto is sufficient to support a finding of bad faith, irrespective of the Respondent’s motivation. This latter assertion represents a misreading of the case cited by the Complainant, CHRISTIAN DIOR COUTURE v. Paul Farley,WIPO Case No. D2008-0008. In that case, with reference to the earlier case of The Perfect Potion v. Domain Administrator,WIPO Case No. D2004-0743, the panel stated the exact opposite, namely that the fact that a website points to pornography is not in itself sufficient to support a finding of bad faith, irrespective of the respondent’s motivation, adding that a degree of targeting of the Complainant’s rights must also be present. In The Perfect Potion, the panel noted: “[…] the Panel is satisfied that the linking of domain names to pornographic websites can constitute bona fide offerings of services for the purposes of paragraph 4(c)(i) of the Policy, and can only support a finding of bad faith for the purposes of paragraph 4(b)(iv) of the Policy if it is shown to the satisfaction of the Panel that the Respondent had the Complainant or its trademark in mind when selecting the domain name for that purpose”. Furthermore, as the panel noted in Club Monaco Corporation v. C. Gindi,WIPO Case No. D2000-0936, a case also involving the pointing of a domain name to a pornographic website, “If the Respondent’s choice of the Domain Name was wholly random and made without knowledge of the Complainant’s name/trademark, then it would be difficult to make a finding of bad faith.” It is possible in the present case that the disputed domain name, consisting at first sight of seemingly meaningless letters, might indicate a random choice by the Respondent which was made without knowledge of the Complainant’s trademark. Nevertheless, the Panel considers on the facts of this case that the choice made by the Respondent is very unlikely to be random and that the Respondent more probably than not was aware of and had the Complainant’s trademark in mind when it registered and used the disputed domain name for the associated website. As noted in the preceding section, the relatively unusual combination of letters in the disputed domain name only seems to make sense in the context of the Complainant’s mark and a geographic or linguistic descriptor. Beyond that context, the Panel can see no apparent or likely connections between the disputed domain name and, for example, the Respondent’s personal, organization or business name, the content of its website or any of its associated activities. Furthermore, to the Panel’s knowledge, there is no accepted acronym or phrase which the first four letters in the disputed domain name might represent, or indeed all six letters, and which are wholly independent of and unconnected to the Complainant and its mark. If there were such an explanation, albeit not presently evident to the Panel, then it is incumbent upon the Respondent to put it forward in answer to the Complainant’s allegations, which it has failed to do. The Respondent’s probable knowledge of the Complainant’s mark and intent to target it may be reasonably inferred from the Complainant’s longstanding international activities and the fact that it evidently seeks business from Chinese-speaking consumers via a global online platform. Based on the evidence before the Panel, it is reasonably to be expected that the Complainant’s website at “www.fxdd.com” is in receipt of significant quantities of Internet traffic which, if diverted via the confusingly similar disputed domain name, would be commercially valuable to the Respondent for the display of its various advertisements. The resulting association of the Complainant’s FXDD mark with pornographic content is likely to lead to tarnishment of such mark (see the discussion on this subject in CHRISTIAN DIOR COUTURE v. Paul Farley, supra). Finally, it must be noted that despite being faced with the Complainant’s allegations of bad faith conduct, the Respondent has failed to bring forward any explanation which might indicate an alternative good faith motivation but rather has chosen to remain silent. What is more, the Panel notes that the Respondent appears to have provided an incomplete address on the WhoIs record for the disputed domain name. This may indicate that the Respondent is attempting to avoid or frustrate remedial action on the part of the Complainant in order to maximize the receipt of Internet traffic resulting from confusion with the Complainant’s mark for the longest possible period. These matters are also suggestive of the Respondent’s bad faith in the circumstances of the present case. In light of the above analysis, the Panel finds that the Respondent registered the disputed domain name with knowledge of and intent to target the Complainant’s trademark, thereafter linking the disputed domain name to the associated website containing pornographic and other advertising content for its own commercial benefit. The Panel finds that that constitutes registration and use in bad faith for the purposes of paragraph 4(a)(iii) of the Policy and that the third element under the Policy has thus been established. 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 Andrew D. S. Lothian
Sole Panelist
Date: August 21, 2020
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