The Complainant is Monecor (London) Limited, United Kingdom, represented by Lane IP Limited, United Kingdom.
The Respondent is David Yee, Malaysia. 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 14, 2020. On September 15, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 16, 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 18, 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 amendment to the Complaint on September 18, 2020. The Center verified that the Complaint, together with the amendment to 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 September 22, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 12, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 13, 2020. The Center appointed Charles Gielen as the sole panelist in this matter on October 29, 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 Complainant is established in London, England, United Kingdom (“UK”) and offers financial spread betting and derivate dealing services. It uses the tradename ETX CAPITAL since 2007. The Complainant owns several registrations for the trademark ETX CAPITAL and it refers in particular to the following European Union trademark registrations: No. 006806269, registered on November 13, 2008, for services in classes 36, 38, and 41, as well as No. 008248676 for the trademark ETX, registered on November 22, 2009, for services in classes 36, 38, and 41. Furthermore, the Complainant has a registration of, and uses several domain names consisting of the domain “etxcapital”. The disputed domain name The Complainant argues that the disputed domain name contains the Complainant’s registered trademark ETX CAPITAL in combination with the non-distinctive element “global” and is therefore confusingly similar to the Complainant’s trademark. Furthermore, the Complainant contends that the Respondent does not have any bona fide interest to use the disputed domain name. According to the Complainant, there is no evidence to support that the Respondent is using the disputed domain name in connection with a bona fide offering of goods or services and that there is no evidence to support that the Respondent has been commonly known by the disputed domain name, or that it acquired any corresponding trademark rights. On the contrary, the disputed domain name is being used in an illegitimate and fraudulent way, because the website, to which the disputed domain name directs, looks strongly like the website of the Complainant and the Respondent suggests that it is being recognized by the UK’s financial regulatory body, the Financial Conduct Authority (FCA), which is untrue. The FCA published a warning that the Respondent is fraudulently using the details of a recognized firm to try to convince people that they work for that firm. Finally, the Complainant contends that the disputed domain name is registered and is being used in bad faith. First of all, the Respondent has copied the majority of imagery and wording from the Complainant’s website onto its website, in order to align itself with the Complainant and make the website look as convincing as possible, in order to imply an association with the Complainant. According to the Complainant, the disputed domain name was clearly registered and is being used in bad faith, namely as a vehicle for fraud, which looks to use the fame and reputation of the Complainant’s business and registered trademark to defraud. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings The Panel is of the opinion that the Complainant’s contentions are reasoned and that the disputed domain name should be transferred to the Complainant pursuant to the Policy. A. Identical or Confusingly Similar The Complainant proves that it has rights in the trademark ETX CAPITAL. The term “etxcapital” in the disputed domain name is identical to this trademark. The fact that the disputed domain name contains the term “global” does not alter the conclusion that the disputed domain name is confusingly similar to the trademark ETX CAPITAL. The reason is twofold. First of all, the term “global” is descriptive since it suggests that the business of the Respondent operates on a global level. Second, the term “etxcapital” in the disputed domain name is the first word and therefore the dominant element. The added suffix “.com” does not change the finding that the disputed domain name is confusingly similar, since the “.com” is understood to be a technical requirement. In making the comparison between the trademark and the disputed domain name, the generic Top-Level Domain (“gTLD”) “.com” is disregarded. The Panel is of the opinion that applying these principles to this case, the disputed domain name is confusingly similar to the Complainant’s trademark. Therefore, the requirement under paragraph 4(a)(i) of the Policy is met. B. Rights or Legitimate Interests The Panel is of the opinion that the Complainant made out a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. First, the Respondent did not show that it owns any rights to the name “etxcapital” nor that is has any license from the Complainant to use its trademark. Second, the Respondent did not argue that it is known, or that it has ever been known under the name “etxcapital”. Third, there is no bona fide offering of goods or services attached to the disputed domain name by the Respondent. On the contrary and as described by the Complainant, the website to which the disputed domain name resolves, copies the imagery and wording of the website of the Complainant. The Panel is convinced that the Respondent has deliberately used the trademark ETX CAPITAL to create an impression of association with the Complainant. Finally, the Respondent has not come forward with evidence of any rights or legitimate interests and the Panel does not find any in the present record. In view of the aforementioned, the Panel is of the opinion that the requirement of paragraph 4(a)(ii) of the Policy is met. C. Registered and Used in Bad Faith The Panel is of the opinion that the disputed domain name was registered and is being used in bad faith. With respect to the registration, the Panel finds that it is implausible that the Respondent was unaware of the Complainant’s trademark that was first registered in 2008. The fact that this trademark is incorporated in its entirety in the disputed domain name demonstrates that the Respondent must have been aware of the existence of the Complainant’s trademark. Furthermore, the Panel is of the opinion that the Respondent, by using the disputed domain name that is confusingly similar to the Complainant’s trademark ETX CAPITAL, will attract Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s trademark and its business. This is particularly true since the disputed domain name is being used for a website that fraudulently copies the imagery and wording of the website of the Complainant, including an exact copy of the “ETX” logo. The fraudulent use of the disputed domain name is also proven by the fact that the website of the Respondent suggests that it is being recognized by the UK’s financial regulatory body, the Financial Conduct Authority (FCA), which is untrue. This has resulted in a warning by the FCA that the Respondent is fraudulently using the details of the Complainant to try to convince people that they work for the Complainant. The Panel therefore concludes that registration and use of the disputed domain name as described in this decision constitutes bad faith under the Policy. The Panel therefore considers the requirement of paragraph 4(a)(iii) of the Policy to be met. 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 Charles Gielen
Sole Panelist
Date: November 12, 2020
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