The Complainant is FXDirectDealer, LLC, United States of America (“United States”), represented by Kolitch Romano LLP, United States.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / Saint Biology, FxddTrade, United States. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 24, 2020. On November 25, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 25, 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 December 1, 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 December 1, 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 December 2, 2020. In accordance with the Rules, paragraph 5, the due date for Response was December 22, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 3, 2021. The Center appointed Steven A. Maier as the sole panelist in this matter on January 8, 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 limited liability company registered in Delaware, United States. It is a provider of foreign exchange trading and related services. The Complainant is the proprietor of various registrations for the trademark FXDD, including for example the following: - United States trademark number 4,418,706 for the standard character mark FXDD, registered on October 15, 2013, in International Classes 9, 36, and 41; - International trademark number 1175697 for the standard character mark FXDD, registered on August 7, 2013, in International Classes 9, 36, and 41 and designating a total of 39 countries under the Madrid Protocol. The Complainant submits evidence of its own business activities conducted on websites including those at “www.fxdd.com” and “www.fxddtrading.com”. The disputed domain name was registered on December 14, 2019. The Complainant submits evidence that the disputed domain name has resolved to a website at “www.fxddtradeonline.com” which was labelled “FxddTrade” and which purported to offer online Bitcoin trading services. 5. Parties’ Contentions A. Complainant The Complainant states that it provides trading and education services to clients worldwide, including institutional investors and hedge funds as well as private individuals. It submits that it has used the FXDD trademark in commerce since at least 2002, including in connection with its websites at “www.fxdd.com” and “www.fxddtrading.com”. The Complainant exhibits articles from the trade press, which refer to its business activities. The Complainant submits that it is an international leader in providing exchange trading services and that its FXDD trademark commands substantial and valuable commercial goodwill. The Complainant submits that the disputed domain name is confusingly similar to its FXDD trademark. It states that the disputed domain name incorporates that trademark in full, with the addition only of the term “tradeonline”. The Complainant submits that this addition does not distinguish the disputed domain name from the Complainant’s trademark, and indeed adds to the likelihood of confusion as it references the Complainant’s own business activities. The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant states that it has never authorized the Respondent to use its FXDD trademark, that the Respondent has not commonly been known by that name, and that the Respondent is not making bona fide commercial use of the disputed domain name. On the contrary, the Complainant contends that the Respondent is using the disputed domain name to impersonate the Complainant for commercial gain. The Complainant contends that the disputed domain name was registered and has been used in bad faith. The Complainant refers to the Respondent’s website at “www.fxddtradeonline.com” (which has since been removed) and contends that this was obviously intended to misrepresent a connection with the Complainant. The Complainant refers to the “FxddTrade” label, which appears on the website homepage, and submits that the website, and promotional advertising on Facebook, resemble the Complainant’s own website and offering of services. The Complainant also provides evidence that information contained on the Respondent’s website is false, for example pictures of its supposed management team, which are in fact stock photos of individuals gathered from the Internet. In these circumstances, the Complainant submits that the Respondent must clearly have been aware of its FXDD trademark when it registered the disputed domain name. It further contends that the Respondent has used the disputed domain name to take unfair advantage of the Complainant’s goodwill in that trademark by impersonating the Complainant in order to misleadingly attract visitors to its website for commercial gain, namely commissions or other fees earned in connection with its purported Bitcoin trading business. The Complainant requests the transfer of the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings In order to succeed in the Complaint, the Complainant is required to show that all three of the elements set out under paragraph 4(a) of the Policy are present. Those elements are: (i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) that the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant has established that it has registered trademark rights in the mark FXDD. The disputed domain name wholly incorporates that trademark, together with the term “tradeonline”. This additional term is a combination of two dictionary words, which do not prevent a finding of confusing similarity between the disputed domain name from the Complainant’s trademark. The Panel finds in the circumstances that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests In the view of the Panel, the Complainant’s submissions set out above give rise to a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. However, the Respondent has not filed a Response in this proceeding and has not submitted any explanation for its registration and use of the disputed domain name, or evidence of rights or legitimate interests on its part in the disputed domain name, whether in the circumstances contemplated by paragraph 4(c) of the Policy or otherwise. There being no other evidence before the Panel of any such rights or legitimate interests, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith The Panel finds the Complainant’s trademark FXDD to be distinctive in nature and that the mark has obtained significant reputation and goodwill in the field of online financial trading. The Panel further notes the Complainant’s use of URLs including “fxddtrading.com”. The Respondent has failed to offer any explanation for its selection of the term FXDD in connection with its Bitcoin trading website and the Panel accepts the Complainant’s submission that that website falsely implies a commercial connection with the Complainant and its services. In the circumstances, the Panel infers that the Respondent registered the disputed domain name in the knowledge of the Complainant’s FXDD trademark and business, including its website at “www.fxddtrading.com”, and with the intention of talking unfair advantage of the Complainant’s goodwill in that trademark. The Panel finds further that the Respondent has used the disputed domain name to impersonate the Complainant for the purpose of misleadingly attracting Internet users to a website, which includes fake information and is clearly fraudulent in nature, purporting to offer Bitcoin trading services. Specifically, the Panel concludes 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 mark as to the source, sponsorship, affiliation, or endorsement of its website or of a product or service on its website (paragraph 4(b)(iv) of the Policy). The Respondent’s subsequent removal of the website does not prevent a finding of bad faith in all the circumstances and the Panel therefore 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, Steven A. Maier
Sole Panelist
Date: January 20, 2021
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