The Complainant is FXCM Global Services, LLC, United States of America (“United States”), represented by SafeNames Ltd., United Kingdom.
The Respondent is Zhenxuan Huang (huang zhen xuan), China.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 27, 2021. On July 27, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 28, 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 July 28, 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 in English on July 29, 2021.
On July 28, 2021, the Center transmitted another email communication to the Parties in English and Chinese regarding the language of the proceeding. On July 29, 2021, 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 August 4, 2021. In accordance with the Rules, paragraph 5, the due date for Response was August 24, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 27, 2021.
The Center appointed Sok Ling MOI as the sole panelist in this matter on September 17, 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 BackgroundThe Complainant, founded in 1999, is a retail provider of online foreign exchange (“Forex”) trading, contract-for-differences (“CFD”) trading, and related services. The Complainant provides global traders with innovative trading tools (such as one-click order execution) and educational courses on forex trading. The Complainant has offices located in Germany, Australia, France, and Hong Kong, China, and offers its services in various languages including English, Chinese, German, French, and Italian. The Complainant predominantly operates from its main website, “www.fxcm.com”, and through its mobile app.
The Complainant uses the brand name FXCM to identify and market its services internationally, and has registered several domain names that feature the FXCM trade mark, including
The Complainant also owns the following trade mark registrations for FXCM:
Jurisdiction
Trade Mark
Class
Registration No.
Registration Date
United States
FXCM
36
2620953
September 17, 2002
European Union
FXCM
35, 36, 41
003955523
November 3, 2005
Australia
FXCM
36, 41
1093998
June 13, 2006
Hong Kong, China
FXCM
16, 36, 41
301708173
March 29, 2011
China
FXCM
36
12457692
March 28, 2016
China
FXCM
41
12458056
September 7, 2016
China
FXCM ASIA
36
12457609
September 7, 2016
China
FXCM ASIA
41
12457647
October 7, 2016
The disputed domain name was registered on May 13, 2021. According to the evidence submitted by the Complainant, the disputed domain name does not resolve to any active website but is being passively held.
5. Parties’ Contentions A. ComplainantThe Complainant contends that the disputed domain name is confusingly similar to its FXCM trade mark. The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name has been registered and is being used in bad faith.
The Complainant requests the transfer of the disputed domain name.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings 6.1 Language of the ProceedingPursuant to paragraph 11(a) of the Rules, unless 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) and (c) of the Rules requires the Panel to ensure that the proceeding takes place with due expedition and that the Parties are treated equitably and given a fair opportunity to present their respective cases.
The language of the Registration Agreements for the disputed domain name is Chinese. From the evidence on record, no agreement appears to have been entered into between the Complainant and the Respondent regarding the language issue. The Complainant filed its Complaint in English and has requested that English be the language of the proceeding. The Respondent did not comment on the issue of the language of the proceeding.
The Panel finds persuasive evidence in the present proceeding to suggest that the Respondent has sufficient knowledge of English. In particular, the Panel notes that:
(a) the disputed domain name is registered in Latin characters, rather than Chinese script; and
(b) the disputed domain name comprises of the English word “asia”.
Additionally, the Panel notes that:
(a) the Center has notified the Respondent of the proceeding in both Chinese and English;
(b) the Respondent has been given the opportunity to present its case in this proceeding and to respond to the issue of the language of the proceeding but has chosen not to do so; and
(c) the Center has informed the Respondent that it would accept a Response in either English or Chinese.
Considering the above circumstances, the Panel finds that the choice of English as the language of the present proceeding is fair to all Parties and is not prejudicial to any of the Parties in their ability to articulate the arguments for this case. The Panel has taken into consideration the fact that to require the Complaint and all supporting documents to be translated into Chinese would, in the circumstances of this case, cause an unnecessary cost burden to the Complainant and would unnecessarily delay the proceeding.
In view of all the above, the Panel determines under paragraph 11(a) of the Rules that it shall accept the Complaint and all supporting materials as filed in English, that English shall be the language of the proceeding, and that the decision will be rendered in English.
6.2 Substantive FindingsParagraph 4(a) of the Policy directs that a complainant must prove each of the following three elements to obtain an order for the disputed domain name to be cancelled or transferred:
(i) the disputed domain name is identical or confusingly similar to a trade mark 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 name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
On the basis of the arguments and evidence introduced by the Complainant, the Panel concludes as follows:
A. Identical or Confusingly SimilarThe Panel accepts that the Complainant has rights in FXCM by virtue of its use and registration of the same as a trade mark.
The disputed domain name incorporates the Complainant’s FXCM trade mark in its entirety. The addition of the hyphen “-” and the term “asia” do not prevent a finding of confusing similarity between the disputed domain name and the Complainant’s trade mark. The addition of the generic Top-Level Domain (“gTLD”) “.com” is a standard registration requirement and is usually disregarded under the confusing similarity test.
Consequently, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s FXCM trade mark.
Accordingly, the Complainant has satisfied the requirements of the first element under paragraph 4(a) of the Policy.
B. Rights or Legitimate InterestsUnder paragraph 4(a)(ii) of the Policy, a complainant bears the burden of establishing that the respondent lacks rights or legitimate interests in the disputed domain name. However, once the complainant makes a prima facie case showing under paragraph 4(a)(ii) of the Policy, the burden of production shifts to the respondent to establish its rights or legitimate interests in the disputed domain name by demonstrating any of the following, without limitation, under paragraph 4(c) of the Policy:
(i) before any notice to it 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 has been commonly known by the disputed domain name, even if it has acquired no trade mark 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 trade mark or service mark at issue.
(See Taylor Wimpey PLC, Taylor Wimpey Holdings Limited v. honghao Internet foshan co, ltd,WIPO Case No. D2013-0974.)
The Complainant has confirmed that the Respondent is not in any way affiliated with the Complainant or otherwise authorized or licensed to use the FXCM trade mark or to seek registration of any domain name incorporating the FXCM trade mark. The Respondent appears to be an individual by the name of Zhenxuan Huang. There is no evidence suggesting that the Respondent is commonly known by the disputed domain name or that the Respondent has any rights in the term “fxcm”.
According to the evidence submitted by the Complainant, the disputed domain name does not resolve to any active website but is being passively held. There is no evidence to suggest that the Respondent has made any preparations to use the disputed domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial purpose.
The Panel is therefore satisfied that the Complainant has made out a prima facie case showing that the Respondent lacks rights or legitimate interests in the disputed domain name. The burden of production thus shifts to the Respondent to establish its rights or legitimate interests in the disputed domain name. Since the Respondent did not file a response to the Complaint and has thus failed to offer any explanation for its registration of the disputed domain name, the prima facie case has not been rebutted.
Noting the construction of the disputed domain name, the Panel agrees with prior UDRP panels and finds that a domain name consisting of a trade mark plus an additional term cannot constitute fair use if it effectively impersonates or suggests sponsorship or endorsement by the trade mark owner.
Consequently, the Panel finds that the Respondent lacks rights or legitimate interests in the disputed domain name.
Accordingly, the Complainant has satisfied the requirements of the second element under paragraph 4(a) of the Policy.
C. Registered and Used in Bad FaithParagraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of a disputed domain name in bad faith, namely:
(i) circumstances indicating that the respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trade mark or service mark or to a competitor of the complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the disputed domain name; or
(ii) the respondent has registered the disputed domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the respondent’s website or location.
By virtue of its extensive use and advertising since 1999, the Complainant and its trade mark FXCM enjoy a reputation worldwide and a strong online presence. In this day and age of the Internet and advancement in information technology, the reputation of brands and trade marks transcends national borders. As such, a cursory Internet search would have disclosed the FXCM trade mark and the extensive use thereof by the Complainant. A strong presumption arises therefore that the Respondent was aware of the existence of the Complainant and its trade mark at the time of registering the disputed domain name. Registration of a domain name that incorporates a complainant’s distinctive and well-known trade mark suggests opportunistic bad faith.
The Panel notes that the disputed domain name does not resolve to any active website. Nevertheless, the consensus view of previous UDRP panels is that passive holding in itself does not preclude a finding of bad faith. UDRP panels must examine all the circumstances of the case to determine whether a respondent is acting in bad faith. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 3.3.
The Respondent has not denied the Complainant’s allegations of bad faith. In view of the above finding that the Respondent does not have rights or legitimate interests in the disputed domain name, and taking into account all the circumstances, the Panel concludes that the Respondent has registered and is using the disputed domain name in bad faith.
Accordingly, the Complainant has satisfied the requirements of the third element under paragraph 4(a) of the Policy.
7. DecisionFor 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
Sok Ling MOI
Sole Panelist
Date: October 21, 2021