The Complainant is OANDA Corporation, United States of America (“United States”), represented by Donahue Fitzgerald, United States.
The Respondent is Varuni MieuLao, Malaysia.
2. The Domain Name and Registrar(s)The disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 6, 2021. On August 9, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same day, 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 August 20, 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 amendment to the Complaint also on August 20, 2021.
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 August 23, 2021. In accordance with the Rules, paragraph 5, the due date for Response was September 12, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 16, 2021.
The Center appointed Kaya Köklü as the sole panelist in this matter on September 21, 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 is a United States based company, which provides currency exchange and financial information services in many jurisdictions worldwide. Its roots date back to the year 1996.
The Complainant is the owner of the OANDA trademark. Among others, the Complainant owns the United States Trademark Registration No. 2,874,938 registered on August 17, 2004. The OANDA trademark covers protection for currency exchange and financial information services (Annex D to the Complaint).
Since 1996, the Complainant further owns and operates its main website at “www.oanda.com”.
The Respondent is an individual from Malaysia.
The disputed domain name was registered on June 1, 2021.
According to screen captures in the case record made on August 3, 2021, the disputed domain name resolved to a website in English that prominently used the OANDA trademark and logo allegedly for offering online trading and investment services (Annex K to the Complaint), including for an invitation to Internet users to log in (Annex L to the Complaint). According to the provided evidence in the case file, a visible disclaimer describing the (lack of) relationship between the Parties was not published at any point within the website linked to the disputed domain name (Annexes K and L to the Complaint).
At the time of the decision, the disputed domain name does no longer resolve to an active website.
Prior to initiation of the administrative proceedings, the Complainant tried in vain to solve the dispute amicably by sending a cease-and-desist letter to the Respondent and asking for the transfer of the disputed domain name (Annex M to the Complaint).
5. Parties’ Contentions A. ComplainantThe Complainant requests the transfer of the disputed domain name.
The Complainant is of the opinion that the disputed domain name is confusing similar to its OANDA trademark.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
Finally, the Complainant argues that the Respondent has registered and is using the disputed domain name in bad faith, particularly for illegal phishing purposes.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsAccording to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark 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.
Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complainant’s contentions. Stanworth Development Limited v. E Net Marketing Ltd.,WIPO Case No. D2007-1228.
However, concerning the uncontested information provided by the Complainant, the Panel may, where relevant, accept the provided reasonable factual allegations in the Complaint as true. See, section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
It is further noted that the Panel has taken note of the WIPO Overview 3.0 and, where appropriate, will decide consistent with the consensus views captured therein.
A. Identical or Confusingly SimilarThe Panel finds that the Complainant has sufficiently demonstrated that it is the legitimate and registered owner of the OANDA trademark by virtue of various trademark registrations (Annex D to the Complaint).
The Panel further finds that the disputed domain name is confusingly similar to the Complainant’s registered OANDA trademark, as it fully incorporates the Complainant’s trademark. As stated at section 1.8 of the WIPO Overview 3.0, where the relevant trademark is recognizable within the disputed domain name, the addition of other terms would not prevent a finding of confusing similarity. The mere addition of the acronym “vip” does, in view of the Panel, not serve to avoid a finding of confusing similarity between the disputed domain name and the Complainant’s OANDA trademark.
Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate InterestsWhile the burden of proof remains with the Complainant, the Panel recognizes that this would often result in the impossible task of proving a negative, in particular as the evidence needed to show the Respondent’s rights or legitimate interests is primarily within the knowledge of the Respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden of production shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name to meet the requirements of paragraph 4(a)(ii) of the Policy. Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455.
With its Complaint, the Complainant has provided prima facie evidence that the Respondent has no rights or legitimate interests, particularly no license or alike to use the Complainant’s OANDA trademark in a confusingly similar way within the disputed domain name.
In the absence of a Response, the Respondent has failed to demonstrate any of the nonexclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or provide any other evidence of a right or legitimate interest in the disputed domain name. On the contrary, the Panel finds on the available record that the disputed domain name has been created and used in connection with illegitimate, probably even fraudulent activities (Annex K and L to the Complaint).
Therefore, the Panel is convinced that the Respondent was well aware of the Complainant’s OANDA trademark as well as its provided currency exchange and financial information services before registering and using the disputed domain name. The Panel has no doubt that the Respondent deliberately has chosen the disputed domain name to cause confusion with the Complainant and its services among Internet users.
Also, the Panel notes that the nature of the disputed domain name carries a risk of implied affiliation or association, as stated in section 2.5.1 of the WIPO Overview 3.0.
Bearing all this in mind, the Panel does not see sufficient basis for assessing a bona fide offering of goods or services by the Respondent.
Consequently, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad FaithThe Panel believes that the Respondent deliberately attempted to create a likelihood of confusion among Internet users for illegitimate purposes, particularly for the following reasons.
At the date of registration of the disputed domain name, the Respondent was obviously well aware of the Complainant and its OANDA trademark. It is obvious to the Panel, that the Respondent has deliberately chosen the disputed domain name to target and mislead Internet users who particularly are searching for information on the Complainant and its offered services. Consequently, the Panel is convinced that the Respondent has registered the disputed domain name in bad faith.
In addition, the Panel finds that the Respondent is using the disputed domain name in bad faith. Featuring a more or less identical copy of the Complainant’s OANDA trademark and logo on the website linked to the disputed domain name as well as the nature of the disputed domain name indicate that the Respondent intentionally tried to misrepresent itself as the trademark owner to misled Internet users in bad faith, probably for fraudulent purposes (Annexes K and L to the Complaint).
Further, the Respondent’s failure to respond to the Complainant’s cease and desist letter of June 14, 2021 and its Complaint in the present administrative proceeding supports the conclusion that it has registered and is using the disputed domain name in bad faith.
The fact that the disputed domain name does not currently resolve to an active website does not change the Panel’s findings in this respect.
Taking these facts of the case into consideration, the Panel believes that this is a typical cybersquatting case, which the UDRP was designed to stop. The Panel therefore concludes that the disputed domain name was registered and is being used in bad faith and that the Complainant consequently has satisfied the third element of the Policy, namely, paragraph 4(a)(iii) 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
Kaya Köklü
Sole Panelist
Date: September 30, 2021