The Complainant is FXCM Global Services, LLC, United States of America (“United States”), represented by SafeNames Ltd., United Kingdom.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / Ford Ramires, Nigeria. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 7, 2020. On September 7, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On September 7, 2020, 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 September 8, 2020, 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 September 8, 2020. 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 September 9, 2020. In accordance with the Rules, paragraph 5, the due date for Response was September 29, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 30, 2020. The Center appointed Haig Oghigian as the sole panelist in this matter on October 13, 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 The Panel finds the following as uncontested facts: The Complainant is FXCM Global Services, LLC, a London-based company founded in 1999 that operates as a retail broker in the foreign exchange market (“Forex”). It is a leading provider of online Forex trading, contact for difference (“CFD”) trading and related services. The Complainant aims to provide global traders with innovative trading tools, including mobile trading, one-click order execution and trading from real-time charts. The Complainant also offers educational courses on Forex trading. The Complainant has received many awards and accolades for its brokerage and trade-related services, including “Best Technical Tools” in 2019 by BrokerChooser, “Annual Review 2018 – 4.5/5 Stars Overall Review” in 2018 by ForexBrokers.com and “Best Customer Support” in 2017 by FX Empire, among others. The Complainant has a prominent name in the Forex and CFD marketplaces. It has a worldwide reputation and has offices in Germany, Australia, France, Hong Kong, China and South Africa, among other locations. The Complainant predominantly operates from its main website, “www.fxcm.com”, and offers its services in several languages, including, but not limited to English, Chinese, German, French and Italian. The Complainant’s mobile application is available on popular application marketplaces such as the Apple Store and Google Play. In addition to its main website, the Complainant has also registered several domain names, which feature the FXCM trademark with various generic Top-Level Domains (“gTLDs”) and country code Top-Level Domains (“ccTLDs”), including the following: The Complainant launched a 20th Anniversary Campaign in February 2019, which consisted of events and activities across its various international locations, including: workshops of active traders, one-on-one meetings with dedicated representatives of the Complainant, trading seminars and educational seminars. The Complainant holds several registered trademarks for the word FXCM, which include the following, among others: Mark Country Registration No. Registration Date Class Covered FXCM United States 2620953 September 17, 2002 36 FXCM European Union 003955523 November 3, 2005 35, 36, 41 FXCM Australia 1093998 June 13, 2006 36, 41 The Complainant has spent a substantial amount of time, money and effort in promoting, marketing, and using the FXCM name and trademark to identify and distinguish its services domestically and internationally. The FXCM trademark is considered a valuable asset to the Complainant. The Complainant has also established a social media presence and uses the trademark FXCM to promote its services under this name, in particular on Facebook at “www.facebook.com/FXCM”, Twitter at “www.twitter.com/fxcm”, and YouTub at “www.youtube.com/fxcm”. The Complainant sent a cease and desist letter to the Respondent on August 13, 2020, to put the Respondent on notice of the Complainant’s trademarks and rights, and to attempt to resolve the matter. The Respondent did not reply to the Complainant’s letter. The Disputed Domain Name was registered on June 30, 2020. The Disputed Domain Name resolves to a website purportedly offer similar services to those of the Complainant, namely online Forex trading (but with cryptocurrency). 5. Parties’ Contentions A. Complainant The Complainant submits that there is goodwill and recognition associated with its FXCM trademark, which is a unique identifier associated with its services. The Complainant’s FXCM trademark is distinctive and well-known within the relevant industry. Prior UDRP decisions have recognized this: See FXCM Global Services, LLC. v. Privacy Protect, LLC (PrivacyProtect.org) / lin chen,WIPO Case No. D2020-1047 (“It appears however that the Respondent is using the Complainant’s distinctive trade mark in the disputed domain names in order to provide financial services that compete with the Complainant’s”) and FXCM Global Services LLC v. WhoisGuard Protected, Whoisguard Inc. / Jenny Sohia,WIPO Case No. D2018-1111 (“Complainant’s mark is distinctive and well-known in its industry”). The Complainant submits that the Disputed Domain Name is confusingly similar to its FXCM trademark. The Disputed Domain Name contains the Complainant’s FXCM trademark, with the addition of the word “invest”. The addition of a generic word to a trademark does not negate the fact that they are confusingly similar. Further, the Complainant submits that the Respondent lacks a right or a legitimate interest in the Disputed Domain Name. To the best of the Complainant’s knowledge, the Respondent does not have any trademark rights to the term “Fxcm” (registered or unregistered). All active trademarks for the term “Fxcm” are held by the Complainant and the Respondent has not received any licence to use the FXCM trademark. The Complainant submits that the Respondent is using the Disputed Domain Name in a manner competitive to the Complainant. The Disputed Domain Name purports to offer online Forex investment and trading, in direct competition with the Complainant. The website located at the Disputed Domain Name provides an option for users to create an account, and encourages users to deposit money, which would involve the user inputting personal financial details. The Complainant submits that it is therefore plausible that the Disputed Domain Name is used for phishing purposes, contrary to the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.13.1. The Complainant submits that given the lack of financial disclaimers usually found on legitimate investment websites, or evidence of authorisation with a financial conduct authority, the Disputed Domain Name is most likely being used for deceptive and fraudulent purposes. The Complainant submits that the FXCM mark is distinctive and is used in commerce only by the Complainant. To the best of the Complainant’s knowledge, the Respondent is not commonly known by the term “Fxcm” nor is it offering bona fide goods or service. Therefore, there is no plausible reason for the registration and use of the Disputed Domain Name, other than to take advantage of the goodwill and reputation attached to the FXCM brand. The Complainant submits that given that monetary deposits may be made on the Disputed Domain Name, and that personal details can be inputted, the Respondent is attempting to make a commercial gain and that this demonstrates that the Respondent is not making a noncommercial use of the Disputed Domain Name. Finally, the Complainant submits that the Disputed Domain Name was registered and is being used in bad faith. The Complainant’s earliest trademark registration predates the creation date of the Disputed Domain Name by almost 18 years. Substantial goodwill has accrued since the Complainant’s establishment in 1999. Further, the search results for “fxcm” on Internet search engines such as Google list the Complainant’s brand and services as the first result. An average Internet user also has access to FXCM trademark registrations, through public trademark databases, which the Complainant included in its submissions. The Respondent has also ignored the cease and desist letter sent on August 13, 2020. The Respondent’s knowledge of the Complainant and its FXCM trademark is also evidenced by the Respondent’s choice to register a domain name containing not only the FXCM trademark, but also a term that directly refers to the Complainant’s field of expertise. The Complainant submits that since the Respondent operates the website attached to the Disputed Domain Name, purportedly specialising in Forex trading, it may be inferred that the Respondent is knowledgeable of the online financial trading sector. Given the reputation of the FXCM trademark in this industry, the Complainant submits that it is implausible that the Respondent was not aware of the Complainant’s trademarks. The Complainant submits that the Respondent is intentionally using the commercial value and goodwill of the Complainant’s brand to attract users to its website and that this leads to a high risk of confusion of online users, who would believe the Disputed Domain Name to be associated with the Complainant. The Complainant also submits that the evidence suggests that the Disputed Domain Name may be part of a broader fraudulent scheme: Links between the Disputed Domain Name and websites that have been marked as fraudulent by financial authorities appear, both in content and secure sockets layer (“SSL”) certificates. Third party publications have highlighted numerous domain names with similar content. The Disputed Domain Name uses images of people likely unaffiliated with the Disputed Domain Name and claims they are consultants (the same images appear on other websites with different names and titles). The Complainant submits that the Respondent used the Complainant’s trademark in the Disputed Domain Name to attract traffic in hope of enticing customers to the advertised service offered under the Disputed Domain Name, and thus attempted to commercially benefit off the Complainant’s FXCM trademark, which is further evidence of bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Under paragraph 4(a) of the Policy, the transfer of the domain name may be ordered if the Complainant demonstrates three elements: (i) the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and The Disputed Domain Name incorporates the Complainant’s trademark in its entirety, solely with the addition of the word “invest”, which describes the Complainant’s business. The mere addition of a term to a trademark does not negate the fact that they are confusingly similar. See WIPO Overview 3.0, section 1.8. The use of the gTLD “.com” in the Disputed Domain Name also does not mitigate the fact that the Disputed Domain Name is confusingly similar to the Complainant’s trademark. See: Facebook, Inc. v. S. Demir Cilingir,WIPO Case No. D2018-2746, in which the panel stated that “[…] the applicable gTLD “.com”, may be disregarded for the purposes of assessment under the first element, as it is viewed as a standard registration requirement”. Accordingly, the Panel finds that the Disputed Domain Name is confusingly similar to the Complainant’s trademark. B. Rights or Legitimate Interests There is no evidence that (i) the Respondent’s use of the Disputed Domain Name relates to a bona fide offering of goods or services; (ii) the Respondent is commonly known by the Disputed Domain Name; or (iii) the Respondent is making a legitimate noncommercial or fair use of the Disputed Domain Name. The Respondent has not established that its use of the Disputed Domain Name is in connection with a bona fide offering of goods or services. Rather, the Disputed Domain Name is being used to offer competing or related Forex services. There is also no evidence that the Respondent has become commonly known by the Disputed Domain Name. The Respondent’s use of the Complainant’s FXCM trademark for a website unaffiliated with, and not authorised by, the Complainant to offer competing services is not a legitimate noncommercial or fair use. Use of domain names to offer services competing with a complainant is not “[...] noncommercial or fair use of the disputed domain names” (see ASOS plc v. Dorethea Gay,WIPO Case No. D2017-0054). Finally, the Respondent’s lack of rights or legitimate interests in the Disputed Domain Name may be inferred from the Respondent’s failure to submit a response to the Complaint. See InterContinental Hotels Group PLC, Six Continents Hotels, Inc., Six Continents Limited v. Domain Admin, Whois Privacy Corp. / Maddisyn Fernandes, Fernandes Privacy Holdings,WIPO Case No. D2017-1072; and Pomellato S.p.A v. Richard Tonetti,WIPO Case No. D2000-0493, holding that “[…] non-response is indicative of a lack of interests inconsistent with an attitude of ownership and a belief in the lawfulness of one’s own rights”. Accordingly, based on the available record and Policy, paragraph 4(a)(ii), the Panel finds that the Complainant has made out a prima facie case, which has not been rebutted by the Respondent, and that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. C. Registered and Used in Bad Faith Bad faith occurs where the Respondent “takes unfair advantage of or otherwise abuses a complainant’s mark” (see WIPO Overview 3.0, section 3.1). In this case, the Respondent’s knowledge of the Complainant and its FXCM trademark is evidenced by the Respondent’s choice to register a domain name containing not only the well-known FXCM trademark, but also a term that directly refers to the Complainant’s field of expertise. The registration of a domain name that includes the trademark, and a term that corresponds with the goods or services offered by the Complainant, is evidence of bad faith. See Société Générale Asset Management v. Dulce de Sanogueira Fontes,WIPO Case No. D2007-0059, where the panel stated that it is “[…] inconceivable that the Respondent registered the domain names without knowledge of the Complainant […]” where the domain names include a term corresponding with the Complainant’s field of business. As the Respondent appears to operate a website specialising in Forex trading, it may be inferred that the Respondent is knowledgeable of the online financial trading sector. Given the reputation of the FXCM trademark in that industry, and that a simple Internet search would have led the Respondent to the Complainant’s website, it is implausible that the Respondent would not be aware of the Complainant’s trademarks. This has previously been found to constitute bad faith: “Given the specific field of activity in which both parties are active, it is unlikely that the Respondent was unaware of the Complainant and its rights when it registered the Disputed Domain Name […]” (Payoneer, Inc v. WhoisGuard Protected, WhoisGuard, Inc. / Iurii Moran,WIPO Case No. D2019-0686). Further, the Panel finds that by using the Disputed Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant’s FXCM trademark. With respect to the allegation of fraudulent activities, although there are indicia that the website may not be bona fide (for example, the use of stock images for alleged contacts), the Panel does not base this decision on a finding of fraudulent activities. Finally, the Respondent has ignored the Complainant’s cease and desist letter of August 13, 2020. A failure to respond to a cease and desist letter can lead to an inference of bad faith behaviour (see Facebook, Inc. and Instagram, LLC v. C W / c w, c w,WIPO Case No. D2018-1159). Consequently, the Panel finds that the Disputed Domain Name was 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, Haig Oghigian
(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
Sole Panelist
Date: October 26, 2020
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