Complainant is FXCM Global Services, LLC, United States of America (“United States”), represented by SafeNames Ltd., United Kingdom.
Respondent is Ai Lin, China. 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 8, 2021. On March 8, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 9, 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 Complainant on March 11, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on March 11, 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 Respondent of the Complaint, and the proceedings commenced on March 17, 2021. In accordance with the Rules, paragraph 5, the due date for Response was April 6, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on April 14, 2021. The Center appointed Stephanie G. Hartung as the sole panelist in this matter on April 20, 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 Complainant is a company organized under the laws of the United States and based in the United Kingdom that operates as a retail broker on the foreign exchange (Forex) market. Complainant has provided evidence that it is the registered owner of numerous trademarks relating to its company name and brand “FXCM”, inter alia, the following: - Word mark FXCM, United States Patent and Trademark Office (USPTO), registration number: 2620953, registration date: September 17, 2002, status: active; Moreover, Complainant has demonstrated to own various domain names relating to its FXCM trademark, including the domain name Respondent, according to the disclosed WhoIs information for the disputed domain name, is a resident of China who registered the disputed domain name on December 14, 2020. The latter redirects to a typical pay-per-click (PPC) website with hyperlinks to active third-party websites, some of which belong to Complainant’s direct competitors on the foreign exchange (Forex) market. Complainant requests that the disputed domain name be transferred to Complainant. 5. Parties’ Contentions A. Complainant Complainant contends to be a leading provider of online Forex trading enjoying worldwide reputation. Complainant submits that the disputed domain name is confusingly similar to Complainant’s FXCM trademark as it clearly contains the latter and the addition of the geographical term “uk” does not negate confusing similarity. Moreover, Complainant asserts that Respondent has no rights or legitimate interests in respect of the disputed domain name since (1) Respondent has not received any license from Complainant to use the FXCM trademark and does not appear to have any trademark rights in said term on its own, (2) the links under the website to which the disputed domain name redirects point to competing websites from which Respondent gains revenue, and (3) there is no plausible reason for the registration and use of the disputed domain name other than with the motive of keeping it from Complainant and to take advantage of the goodwill and valuable reputation attached to the FXCM trademark. Finally, Complainant asserts that Respondent has registered and is using the disputed domain name in bad faith since (1) Complainant’s earliest FXCM trademark registration predates the creation of the disputed domain name by 18 years, and (2) the use of PPC links by Respondent on the website under the disputed domain name constitutes a clear attempt to generate commercial gain, particularly by misleading online users with the disputed domain name and subsequently redirecting these online users to competing third-party websites. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings Under paragraph 4(a) of the Policy, Complainant carries the burden of proving: (i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and Respondent's default in the case at hand does not automatically result in a decision in favor of Complainant, however, paragraph 5(f) of the Rules provides that if Respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute solely based upon the Complaint. Further, according to paragraph 14(b) of the Rules, the Panel may draw such inferences from Respondent’s failure to submit a Response as it considers appropriate. A. Identical or Confusingly Similar The Panel concludes that the disputed domain name is confusingly similar to the FXCM trademark in which Complainant has rights. The disputed domain name incorporates the FXCM trademark in its entirety. Numerous UDRP panels have recognized that incorporating a trademark in its entirety can be sufficient to establish that the disputed domain name is at least confusingly similar to a registered trademark (see e.g. PepsiCo, Inc. v. PEPSI, SRL (a/k/a P.E.P.S.I.) and EMS Computer Industry (a/k/a EMS),WIPO Case No. D2003-0696). Moreover, it has been held in many UDRP decisions and has become a consensus view among panelists (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8), that the addition of other terms (whether e.g. geographic or descriptive) would not prevent the finding of confusing similarity under the first element of the UDRP. Accordingly, the addition of the geographic term “UK” (two-letter-code for the “United Kingdom”) does not dispel the confusing similarity arising from the incorporation of Complainant’s FXCM trademark in the disputed domain name. Therefore, Complainant has established the first element under the Policy set forth by paragraph 4(a)(i). B. Rights or Legitimate Interests The Panel is further convinced on the basis of Complainant’s undisputed contentions that Respondent has not made use of the disputed domain name in connection with a bona fide offering of goods or services, nor has Respondent been commonly known by the disputed domain name, nor can it be found that Respondent has made a legitimate noncommercial or fair use thereof without intent for commercial gain. Respondent has not been authorized to use Complainant’s FXCM trademark, either as a domain name or in any other way. Also, there is no reason to believe that Respondent’s name somehow corresponds with the disputed domain name and Respondent does not appear to have any trademark rights associated with the term “fxcm” on its own. Finally, Respondent obviously has neither used the disputed domain name for a bona fide offering of goods or services nor for a legitimate noncommercial or fair purpose. On the contrary, the disputed domain name resolves to a typical PPC website showing a variety of hyperlinks to third-party websites, some of which belong to Complainant’s direct competitors on the foreign exchange (Forex) market, for the obvious purpose of generating PPC revenues. UDRP panels agree that using a domain name to host a PPC website does not present a bona fide offering where such PPC links compete with or capitalize on the reputation and goodwill of the complainant’s trademark or otherwise mislead Internet users (see WIPO Overview 3.0, section 2.9). Accordingly, Complainant has established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name. Now, the burden of production shifts to Respondent to come forward with appropriate evidence demonstrating to the contrary (see WIPO Overview 3.0, section 2.1). Given that Respondent has defaulted, it has not met that burden. Therefore, the Panel finds that Complainant has also satisfied paragraph 4(a)(ii) and, thus, the second element of the Policy. C. Registered and Used in Bad Faith The Panel finally holds that the disputed domain name was registered and is being used by Respondent in bad faith. Resolving the disputed domain name which is confusingly similar to Complainant’s FXCM trademark to a typical PPC website showing a variety of hyperlinks to active third-party websites, which even include companies belonging to Complainant’s direct competitors on the foreign exchange (Forex) market, for the obvious purpose of generating PPC revenues, is a clear indication that Respondent intentionally attempted to attract, for commercial gain, Internet users to its own website by creating a likelihood of confusion with Complainant’s FXCM trademark as to the source, sponsorship, affiliation or endorsement of this website. Such circumstances are evidence of registration and use of the disputed domain name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy. In this context, the Panel has also noted that Respondent provided fault or incomplete contact information in the WhoIs register for the disputed domain name since, according to the email correspondence between the Center and the postal courier DHL, the Written Notice on the Notification of Complaint dated March 17, 2021, could not be delivered. This fact at least throws a light on Respondent’s behavior which further supports the Panel’s bad faith finding. Therefore, Complainant has also satisfied the third element under the Policy as set forth by paragraph 4(a)(iii). 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 Stephanie G. Hartung
- Word Mark FXCM, European Union Intellectual Property Office (EUIPO), registration number: 003955523, registration date: November 3, 2005, status: active.
(ii that 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.
Sole Panelist
Date: April 28, 2021
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