The Complainant is FXDirectDealer, LLC, United States of America (“United States”), represented by Kolitch Romano LLP, United States.
The Respondent is Domain Administrator, See PrivacyGuardian.org, United States / Rushsoul Mist, AGKLCU, Lao People's Democratic Republic. 2. The Domain Names and Registrar
The disputed domain names The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 9, 2020. On November 9, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On November 9, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Names, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on November 10, 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 November 14, 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 November 17, 2020. In accordance with the Rules, paragraph 5, the due date for Response was December 7, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 8, 2020. The Center appointed Mathias Lilleengen as the sole panelist in this matter on December 11, 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 a financial services company that offers goods and services around the world in online foreign exchange trading (“Forex”) and education services, including to individual and institutional traders, hedge funds, commercial entities, brokerage firms, and money managers. The Complainant has been using the trademark FXDD since as early as 2002, including at the websites “www.fxdd.com” and “www.fxddtrading.com”. The Complainant owns trademark registrations in FXDD, such as United States Registration No. 3,991,011, registered on July 5, 2011 and United States Registration No. 4,418,706, registered on October 15, 2013. The Domain Names were registered on September 10, 2020. The Complainant has provided evidence that the Domain Names have been used to set up websites that display the Complainant’s trademarks and suggest that the Complainant is the source of the websites. At the time of the Decision, the Domain Names do not resolve to active webpages. 5. Parties’ Contentions A. Complainant The Complainant provides evidence of trademark registrations. The Complainant argues that the Domain Names are confusingly similar to the Complainant’s trademarks. The inclusion of the term “trad” does not prevent the likelihood of confusion, and may even increase the likelihood of confusion. The Complainant asserts that the Respondent is not authorized to use the Complainant’s trademark. The Respondent is not commonly known by the Domain Names. The Respondent cannot establish rights in the Domain Names as it has not made any use of, or demonstrable preparations to use, the Domain Names in connection with a bona fide offering of goods or services. On the contrary, there is evidence that the Respondent has used the Domain Names for websites that falsely suggest affiliation with the Complainant. Moreover, the websites have been used in a fraudulent scheme. The Complainant believes the Respondent knew or should have known of the Complainant and the Complainant’s trademark rights when the Respondent registered the Domain Names. The Respondent has been using the Domain Names to attract consumers for commercial gain by creating a likelihood of confusion with the Complainant’s trademark. Moreover, they have been used as part of a fraudulent scheme. The Respondent’s use of a privacy service further indicates bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Complainant has established that it has rights in the trademark FXDD. The test for confusing similarity involves the comparison between the trademark and the Domain Names. In this case, the Domain Names incorporate the Complainant’s trademark, with the addition of the term “trad” at the end. The addition does not prevent a finding of confusing similarity between the Domain Names and the Complainant’s trademark. For the purpose of assessing under paragraph 4(a)(i) of the Policy, the Panel may ignore the generic Top-Level Domains (“gTLD”); see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.11. The Panel finds that the Domain Names are confusingly similar to a trademark in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Complainant has made unrebutted assertions that it has not granted any authorization to the Respondent to register domain names containing the Complainant’s trademark or otherwise make use of its trademarks. There is no evidence that the Respondent has registered the Domain Names as a trademark or acquired unregistered trademark rights. The Respondent cannot establish rights in the Domain Names, as it has not made use of, or demonstrable preparations to use, the Domain Names in connection with a bona fide offering. The Respondent’s use of the Domain Names in a fraudulent scheme is clearly not bona fide. Accordingly, the Complainant has put forward a prima facie case that the Respondent has no rights or legitimate interests in the Domain Names, which the Respondent has not rebutted. Furthermore, the composition and use of the Domain Names carry a risk of implied affiliation and cannot constitute fair use in the circumstances of this case. See WIPO Overview 3.0, section 2.5. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Names in accordance with paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Based on the case file, the Respondent must have been aware of the Complainant when the Respondent registered the Domain Names. The Panel agrees with the Complainant that the Respondent by registering the Complainant’s trademark in the Domain Names was seeking to create a likelihood of confusion with the trademark to mislead third parties, evidenced by the Respondent’s use of the Domain Names in a fraudulent scheme. In this context, the Respondent’s use of a privacy service further points to bad faith. For the reasons set out above, the Panel concludes that the Domain Names were registered and are being used in bad faith, within the meaning of paragraph 4(a)(iii) of the Policy. 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 Domain Names, Mathias Lilleengen
Sole Panelist
Date: December 15, 2020
Full & Egal Universal Law Academy