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 / Soy Cao, Australia. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 3, 2021. On March 3, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 3, 2021, 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 March 4, 2021 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 March 4, 2021. 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 March 5, 2021. In accordance with the Rules, paragraph 5, the due date for Response was March 25, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 26, 2021. The Center appointed Alvaro Loureiro Oliveira as the sole panelist in this matter on April 7, 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 FXCM Global Services, LLC, a large company operating as a retail broker in the foreign exchange (“Forex”) market since 1999, being a leading provider of online Forex trading, contract for differences (“CFD”) trading and related services. The Complainant also offers educational courses on Forex trading. The Complainant is active at several locations worldwide. The services rendered by the Complainant have been awarded several prizes by different international institutions, such as “Best Technical Tools” in 2019, “Annual Review 2018 – 4.5/5 Stars Overall Review” in 2018, among others. Evidence of these allegations was presented as Annexes 4 (awards) and 5 (international offices) of the Complaint. As shown in Annex 10 of the Complaint, the Complainant owns several registrations for the mark FXCM throughout the world, with attention to the registrations granted in the United States (registration number 2620953, registered on September 17, 2002), Australia (registration number 1093998, registered on June 13, 2006) and the European Union (registration number 003955523, registered on November 3, 2005). The Complainant has registered a comprehensive number of domain names incorporating the mark FXCM, being the main one The disputed domain name The Complainant contends that the disputed domain name is confusingly similar to the Complainant’s marks registered and used worldwide. In fact, the only distinctive term included in the disputed domain name is “fxcm”, which is identical to the Complainant’s registered mark. The expression chosen by the Respondent to compose the disputed domain name together with “fxcm” is “coins”, an obvious reference to “money”, which seems to be an attempt to create confusion and mislead Internet users into believing that the disputed domain name may be related to the Complainant’s activity as a retail broker in the Forex market. The Complainant owns several registrations worldwide for the trademark FXCM, as well as several domain names bearing this mark, as evidenced by Annexes 7, 9 and 10 of the Complaint. Also, evidence of the renown of the mark FXCM was produced, as shown in Annex 4 of the Complaint, which lists the awards. The disputed domain name adopted by the Respondent – including a reproduction of the Complainant’s registered mark– shows an intention of misleading Internet users, as it leads to a page showing the distinctive symbol of the Complainant’s registered FXCM logo and appears to offer a login portal facility that enables Internet users to input personal data, when used preceded by “www”. The Complainant underlines that in this case the disputed domain name gives the impression that it is associated with the Complainant, and that it is certainly being used for fraudulent purposes, to phish personal data from Internet users when visiting the website including “www” at the beginning of the disputed domain name. On the other hand, the use without the “www” leads to a page offering services from an unrelated third party. The Complainant alleges that this use is calculated to mislead consumers and tarnish the Complainant’s mark. The Complainant tried to contact the Respondent by a cease and desist letter (annex 15 of the Complaint), but no response was received. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings The Policy, in its paragraph 4(a), determines that three elements must be present and duly proven by a complainant to obtain relief. These elements are: (i) the disputed domain name is 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 to the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar Regarding the first element, the Panel is satisfied that the Complainant has presented adequate proof of having rights in the mark FXCM, registered throughout the world. Further, the Panel finds that the disputed domain name is indeed confusingly similar to the trademark belonging to the Complainant, since this mark is entirely reproduced in the disputed domain name registered by the Respondent with the addition of the term “coins”. The addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element. See section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). The Panel further notes that the additional term has connotations to the Complainant’s field of business. Hence, the Panel concludes that the first of the elements in the Policy has been satisfied by the Complainant in this dispute. B. Rights or Legitimate Interests The Panel notes that the Complainant provides clear evidence that the trademark FXCM is registered in the Complainant’s name and is widely known as identifying the Complainant’s activities, and that the Complainant has not licensed this to the Respondent. Furthermore, the Respondent is not commonly known by the disputed domain name. There is also no evidence before the Panel that the disputed domain name has been used for a legitimate noncommercial or fair use, or that the Respondent has made a bona fide offering of goods or services under the disputed domain name. The use of the disputed domain name is intentionally misleading consumers because of the adoption of a domain name that reproduces the Complainant’s trademark with the addition of the word “coins”, as well as the fact that when visiting the website including “www” at the beginning of the disputed domain name, it directs to a page showing the distinctive symbol of the Complainant’s registered FXCM logo and appears to offer a login portal facility that enables Internet users to input personal data. Accordingly, the Panel finds that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. In the absence of a Response, the Respondent has not rebutted such prima facie case. The Panel further notes that the cease and desist letter and present proceeding were ignored by the Respondent. Thus, the Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name. For this reason, the Panel finds that the Complainant has satisfied the second element of the Policy. C. Registered and Used in Bad Faith It is clear to the Panel that the Respondent has registered and used the disputed domain name with the purpose of taking advantage of the Complainant’s mark. The Complainant has registered trademark rights in FXCM. Further, the additional term “coins” in the disputed domain name can surely be considered an allusion to the Complainant’s business, giving Internet users the impression that the disputed domain name belongs to the Complainant. Therefore, the Panel finds that the disputed domain name was registered to mislead Internet users. When used with “www”, the disputed domain name resolves to a page displaying the FXCM logo registered by the Complainant and appears to offer a login portal facility that enables Internet users to input personal data, which supports a finding of bad faith in the circumstances of this case. The Respondent has intended to give an overall impression that the disputed domain name is associated with the Complainant, and the Panel accepts that the disputed domain name may be intended for illegitimate purposes. The bad faith finding also results from the alternate use of the disputed domain name without “www”, which leads to a page advertising the open-source computing platform “CentOS Linux”, a service completely unrelated to the Complainant. Such use disrupts the Complainant’s business. All the points above lead to the conclusion by this Panel that the Respondent was fully aware of the Complainant when registering the disputed domain name and that the Respondent registered and is using the disputed domain name in bad faith. The Panel finds that the Complainant has also proved the third element 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 disputed domain name Alvaro Loureiro Oliveira
Sole Panelist
Date: April 22, 2021
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