The Complainant is Swissquote Group Holding SA, Switzerland, represented by Inlex IP Expertise, France.
The Respondent is Domain Administrator, See PrivacyGuardian.org, United States of America / Xu Shuaiwei (徐帅伟), China. 2. The Domain Names and Registrars
The Disputed Domain Names The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on November 17, 2020. On November 17, 2020, the Center transmitted by email to the Registrars a request for registrar verification in connection with the Disputed Domain Names. On November 17, 2020 and on November 18, 2020, the Registrars transmitted by email to the Center their verification responses disclosing registrant and contact information for the Disputed 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 19, 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 in English on November 19, 2020. On November 19, 2020, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On November 19, 2020, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding. 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 in English and Chinese of the Complaint, and the proceedings commenced on December 15, 2020. In accordance with the Rules, paragraph 5, the due date for Response was January 4, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 6, 2021. The Center appointed Peter J. Dernbach as the sole panelist in this matter on March 18, 2021. 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 Swiss company that provides online banking, foreign exchange and trading services. The Complainant is Switzerland’s leading provider of online financial and trading services. The Complainant is the owner of SWISSQUOTE trademarks in respect of advertising, financial and other services, including: International trademark SWISSQUOTE, registration number 1132411, designating European Union, registered since August 20, 2012 for the following services: “advertising, economic information in connection with the operation of companies, in text, digital and graphic form” in class 35; “financial services, particularly provision of financial products such as stocks, bonds, warrants or other derivative products” in class 36; and “telematic services, particularly on the Internet” in class 38. International trademark, registration number 742603, designating European Union, registered on August 31, 2000 for the following services: “advertising; economic information services in connection with the operation of companies, in the form of text, digital and graphic communications” in class 35; “offer of financial services; provision of financial information; on-line brokerage; stock exchange, financial and monetary transactions conducted online; all these services via global computer networks known as the Internet” in class 36. The Complainant is also the owner of several domain names, in particular the domain name The Disputed Domain Names The Complainant’s submissions may be summarized as follows: (i) The Disputed Domain Names are identical or confusingly similar to the trademark or service mark in which the Complainant has rights. The Complainant argues that the Disputed Domain Names are confusingly similar to its SWISSQUOTE trademarks. All nine Disputed Domain Names differ from the prior trademark SWISSQUOTE by either switching one letter, deleting one letter, or by adding the prefix “www”. (ii) The Respondent has no rights or legitimate interests in respect of the Disputed Domain Names. The Complainant argues that the Respondent has no rights or legitimate interests in the Disputed Domain Names. The Respondent is not affiliated with or authorized by the Complainant in any way. The Complainant has never authorized the Respondent to make any use of its SWISSQUOTE trademarks or to register the Disputed Domain Names. There is no evidence showing that the name of the Respondent provided by the Registrars has any connection with the Disputed Domain Names. The Respondent offered to sell the nine Disputed Domain Names for USD 1000. The Respondent’s Disputed Domain Names are not used in connection with a bona fide offering of goods or/and services nor do they constitute a legitimate noncommercial or fair use. (iii) The Disputed Domain Names were registered and are being used in bad faith. The Complainant’s business and trademarks have existed long before the Respondent’s registrations of the Disputed Domain Names. SWISSQUOTE has no meaning as such in French nor English. The registrations of all the Disputed Domain Names cannot be a coincidence. The registrations of the five Disputed Domain Names The Disputed Domain Names The Disputed Domain Names The Respondent has engaged in a pattern of registering domain names typosquatting of the Complainant’s trademark SWISSQUOTE. Given the above facts, the Disputed Domain Names are obviously being used in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Language of the Proceeding Paragraph 11(a) of the Rules provides that “[u]nless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.” Paragraph 10(b) of the Rules provides that “[i]n all cases, the Panel shall ensure that the Parties are treated with equality and that each Party is given a fair opportunity to present its case”; and paragraph 10(c) of the Rules provides that “[t]he Panel shall ensure that the administrative proceeding takes place with due expedition.” The language of the Registration Agreement is English for the five Disputed Domain Names The websites connected to the Disputed Domain Names contain content written in English. The earlier complaints against domain names The Complainant requested that the language of the proceeding be English. In order to proceed in Chinese, the Complainant would have had to retain specialized translation services at a cost very likely to be higher than the overall cost of these proceedings. The Respondent was given an opportunity to comment on the language of the proceeding and failed to do so. Given the above considerations, the Panel decides that the language of the proceeding be English. 7. Consolidation request The Complainant requests consolidation of the multiple domain name disputes under paragraph 10(e) of the Rules given that the Respondents of the nine Disputed Domain Names appear to be the same person/entity or to be subject to common control. Paragraph 10(e) allows the possibility to consolidate multiple domain name disputes if the Complainant demonstrates that the Disputed Domain Names or the websites to which they resolve are subject to common control and if the consolidation would be procedurally efficient, fair and equitable to the parties. See BMW v. Mike Lee et al.,WIPO Case No. D2016-2268. According to the information provided by the Registrar, the domain name Registrant of Having considered the above, the Panel finds that the consolidation of all the nine domain name disputes would be procedurally efficient, fair and equitable to the parties. The Panel grants the consolidation request. 8. Discussion and Findings In accordance with paragraph 4(a) of the Policy, in order to succeed in this administrative proceeding and obtain the requested remedy (in this case, transfer of the Disputed Domain Names), the Complainant must prove that each of the three following elements are present: (i) the Disputed Domain Names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Names; and (iii) the Disputed Domain Names have been registered and are being used in bad faith. A. Identical or Confusingly Similar The Panel finds that all nine Disputed Domain Names’ distinctive parts only differ from the Complainant’s SWISSQUOTE trademarks by either switching one letter, deleting one letter, or by adding the prefix “www”. - The differences between The Panel finds that these differences do not prevent the confusing similarity between each of the Disputed Domain Names and the Complainant’s SWISSQUOTE trademarks. It is well established that the generic Top-Level Domain (“gTLD”) used as part of a domain name should be disregarded as it does not serve to distinguish domain names. Therefore, the Disputed Domain Names do not eliminate the confusing similarity with the Complainant’s SWISSQUOTE trademarks by adding “.com”. Accordingly, the Panel finds that the Disputed Domain Names are confusingly similar to the Complainant’s trademarks, and the condition of paragraph 4(a)(i) of the Policy has been fulfilled. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy sets out the following circumstances which, without limitation, if found by the Panel, shall demonstrate that the Respondent has rights to, or legitimate interests in, a Disputed Domain Name, for the purposes of paragraph 4(a)(ii) of the Policy: “(i) before any notice to [the Respondent] of the dispute, [the Respondent’s] use of, or demonstrable preparations to use, the [disputed] domain name or a name corresponding to the [disputed] domain name in connection with a bona fide offering of goods or services; or (ii) [the Respondent] (as an individual, business, or other organization) [has] been commonly known by the [disputed]domain name, even if [the Respondent has] acquired no trademark or service mark rights; or (iii) [the Respondent is] making a legitimate noncommercial or fair use of the [disputed] domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.” In circumstances where the Complainant possesses exclusive rights to the SWISSQUOTE trademarks and the Complainant has never authorized or licensed the Respondent to use its trademarks, the Panel is satisfied that the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the Disputed Domain Names, and the burden of production shifts to the Respondent. See International Hospitality Management- IHM S.p.A. v. Enrico Callegari Ecostudio,WIPO Case No. D2002-0683. The Complainant submits that the Respondent is not authorized to use its trademarks or register it as a domain name. The Disputed Domain Names resolved to websites that offered links to services of the same type as the Complainant. This shows that the Respondent was well aware of the nature of the Complainant’s services and intentionally attempted to attract Internet users who misspelled the Complainant’s trademarks and directed them to a competitor’s website, thereby taking advantage of the reputation of the Complainant’s trademark to misleadingly divert consumers. The Panel does not consider that such use to be bona fide offering of goods or services. See ACCOR v. Steve Kerry / North West Enterprise, Inc.,WIPO Case No. D2006-0649. The Respondent’s name is Xu Shuaiwei, which has no apparent connection with all the Disputed Domain Names. The Disputed Domain Names resolve to parking websites or websites offering the Disputed Domain Names for sale. The Respondent is obviously not making a legitimate noncommercial or fair use of the Disputed Domain Names. In view of the above circumstances, the Panel considers that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Names. The burden now shifts to the Respondent to produce some arguments and evidence to show that he does have rights or legitimate interests in the Disputed Domain Names. The Respondent did not respond to the Complaint. Therefore, based on the record of this proceeding, the Panel finds that the Complainant has satisfied the second element in paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy provides that “[a domain-name holder] is required to submit to a mandatory administrative proceeding in the event that [a complainant] asserts to the applicable [administrative-dispute-resolution service providers], in compliance with the Rules of Procedure, that […] (iii) [the respondent’s] domain name has been registered and is being used in bad faith.” Paragraph 4(b) of the Policy explicitly states, in relevant part, that “the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith: […] “(iv) by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] 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 [the respondent’s] web site or location or of a product or service on [the respondent’s] web site or location”. The Complainant’s SWISSQUOTE trademarks have been registered in many countries around the world. These registrations were made long prior to the registrations of the Disputed Domain Names. SWISSQUOTE has no meaning in French nor English. The Panel finds that the registrations of all the Disputed Domain Names similar to SWISSQUOTE trademarks in the same day are unlikely to be coincidences. The Respondent has not submitted any allegation or evidence suggesting that the Respondent selected all the terms similar to SWISSQUOTE for any reason other than the reputation of the Complainant’s trademarks. The Panel therefore finds that the Disputed Domain Names have been registered in bad faith. “The generation of revenue from domain name parking activities is not necessarily use in bad faith under the Policy. However, it is use in bad faith within the scope of paragraph 4(b)(iv) of the Policy where the registrant chose the domain name in question because of its similarity to a mark or name of another person in the hope and expectation that that similarity will result in an increased number of Internet users being drawn to that page”. See Classmates Online, Inc. v. Mary Lamb,WIPO Case No. D2009-0715. The Disputed Domain Names The Disputed Domain Names Having considered the above, the Panel finds that the Disputed Domain Names have been registered and are being used in bad faith, and the Complainant has fulfilled the condition provided in paragraph 4(a)(iii) of the Policy. 9. 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 Names, Peter J. Dernbach
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Sole Panelist
Date: April 1, 2021
Full & Egal Universal Law Academy