The Complainant is EFG Bank European Financial Group SA, Switzerland, represented by CMS Cameron McKenna Nabarro Olswang LLP, United Kingdom.
The Respondent is Lwanga Charles, EFG Network, Uganda.
2. The Domain Name and RegistrarThe Domain Name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 21, 2021. On October 21, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 21, 2201, 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 October 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 on October 28, 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 November 3, 2021. In accordance with the Rules, paragraph 5, the due date for Response was November 23, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 14, 2021.
The Center appointed W. Scott Blackmer as the sole panelist in this matter on December 22, 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 an international banking group founded in 1995 and organized as a Swiss stock company. It is regulated by the Swiss Financial Market Supervisory Authority FINMA. The Complainant has been using EFG as a trade name and trademark internationally since 1996.
The Complainant has the controlling interest in Zurich-based EFG International, which is listed on the SIX Swiss stock exchange. The group operates in more than 20 countries worldwide (including an advisory office in Dubai) using its EFG brand, has 3,000 employees, and manages CHF 170 billion of client assets. The Complainant operates a principal website at “www.efgbank.com”.
The Complainant holds numerous trademark registrations incorporating the EFG mark, including the following:
MARK
JURISDICTION
REGISTRATION NUMBER
REGISTRATION DATE
EFG (word mark)
United Kingdom
2134924B
August 23, 1998
EFG (word mark)
European Union
582742
January 25, 1999
EFG (word mark)
Switzerland
464732
September 7, 1999
EFG (word mark)
United States
2554449
April 2, 2002
The Domain Name was registered on July 11, 2020, by the Respondent “Lwanga Charles”, naming the organization as “EFG Network” with a postal address in Kampala, Uganda, and giving an email contact address with a Gmail account. The Panel notes that there is no registered business of that name listed in the online Business Registration System database operated by the statutory Uganda Registration Services Bureau (URSB).
The Domain Name no longer resolves to a website but at the time of filing the Complaint resolved to a site (the “Respondent’s website”) headed “Emirates Financial Global Network” with the tagline, “The financial ambassadors!”. The website advertised investment planning, wealth management, and financial advising services. However, the business model summarized on the Respondent’s website described what appears to be a sort of multilevel marketing program or pyramid scheme:
“EFG NETWORK IS AN INTERNATIONAL FINANCIAL NETWORK AIMED AT EMPOWERING MEMBERS, THROUGH ITS HUMAN CAPACITY DEVELOPMENT TRAINING AND IT'S AMAZING FINANCIAL EMPOWERMENT PACKAGES.
WITH LONG YEARS OF EXPERIENCE, EFG NETWORK BOARD NOTED THAT, BY STARTING SMALL (LOW COST ENTRY FEES) EVERYONE CAN MOVE FROM ONE FINANCIAL LEVEL TO THE HIGHEST.
EFG NETWORK HAS 8 STAGES AND EACH STAGE CONTAINS 2 LEVELS THAT MAKES A TOTAL OF 16 LEVELS. EACH MEMBER IS MEAN'T TO START FROM STAGE 1*.
*AFTER JOINING, YOU ARE EXPECTED TO INVITE, REFER OR RECRUIT A MINIMUM OF 2 PEOPLE UNDER YOU; TEACH THEM TO DO THE SAME SO THAT YOUR NETWORK CAN GROW. THE MORE YOUR NETWORK GROWS THE HIGHER THE PERCENTAGE INCOME FLOW INTO YOUR ACCOUNT*.
Registration into EFG NETWORK requires only 11 USD for one account. Multiple accounts can be opened up depending on someone's wish.
(THIS CAN BE CHANGED INTO YOUR CURRENCY IF YOU ARE PAYING THE ONE TIME INVESTMENT FEE USING MOBILE MONEY)”
This multilevel plan for compensation from an investor’s “down line” was detailed on the “Financial Platform” page of the website.
Site visitors were encouraged to “Pay your registration fee to get started.” They could “Click to pay now”, paying USD 11 to register as a member and purchase “A life time shares” for “Unlimited weekly profits from Forex and shares”.
The website displayed an “EFG Network Earnings Chart” for East Africa, denominated in USD and Uganda Shillings, based on the number of people a member recruits to join the network, and a similar chart for “Partners in Botswana, Zambia, RSA [presumably Republic of South Africa], Zimbabwe, and Namibia”, with earnings calculated in USD and Botswana Pula.
The Respondent’s website included a “Risk Warning” similar to those often found on investment-related sites:
“EMIRATES FINANCIAL GLOBAL NETWORK offers general trading advice that does not take into consideration your own trading experiences, personal objectives and goals, financial means, or risk tolerance. If you have any concerns, we suggest you seek advice from a professional financial advisor. Keep in mind that past performance is no indication of future results.”
The home page profiled the Respondent’s founder as “MR JOHN PATEL, AN INCREDIBLE LEADER, BUSINESS MAN AND A DYNAMIC NETWORK EXPERT FROM DUBAI, WHO IS PASSIONATE TO TRANSFORM THE LIVES OF MANY WHO BECOME MEMBERS GLOBALLY.”
The home page of the Respondent’s website displayed the name “Emirates” and refered to a founder from Dubai, and it displayed a large photo of the iconic Burj al Arab Hotel in Dubai. It also provided only a Swiss telephone number as a contact number, but this is actually the telephone number for “general enquiries” on the “Contact” page of the Complainant’s website.
The home page of the Respondent’s website also displayed the Gmail email address used for the Domain Name registration, although it is highly unlikely that an established financial services company would use such an address for client emails.
Despite the Dubai references, the home page displayed a large map of London with a pin noting an address in Ruislip, without actually identifying the address as the Respondent’s office.
The “Background” page of the Respondent’s website refered to serving clients since 2011 using “the latest in trading technology with our accessible investment platform”. The page also introduced “our team”: two traders and a financial analyst. The Complainant demonstrates from a Google Images search on the photo of one of these men that it is a stock image found on many other websites. Following these profiles were videos such as “How to Properly Manage Your Money Like the Rich”, by an unrelated motivational author and speaker. These videos are freely available on YouTube and do not appear to be related in any way to the Respondent.
The Respondent’s website included an “EFG Orphanage” page that solicited donations through the website to “EFG Foundation (Our Orphanage)”. This page included photos of children in ragged clothing, with this accompanying text:
“Please Kindly donate to our Orphanage to give hope to a number of Orphans we are taking care of. God bless you. Click to donate now.”
There was no further information on the website identifying the supposed foundation or orphanage, which do not appear in any other online search results.
The Respondent’s website included a chat feature, WhatsApp group invite, and buttons for links to social media sites on Twitter, Instagram, and Facebook. None of these social media pages are functional at the time of this proceeding.
The Complaint attaches an article entitled “Forex Trading Scam” from the December 2020 edition of an online journal published in Botswana called The Voice reporting on complaints that “scores” of Botswanans had been defrauded by a Ugandan Forex [foreign exchange] trader named “Charles Lwanga” through a WhatsApp group connected with “a forex trading company called EFG network Investments Proprietary Limited”.
5. Parties’ Contentions A. ComplainantThe Complainant asserts that the Domain Name is confusingly similar to the Complainant’s company name, registered trademarks, and unregistered sign, which it incorporates in its entirety.
The Complainant argues that the Respondent has no permission to use its EFG mark and uses the Domain Name for what is evidently a fraudulent pyramid scheme, not a legitimate business. The Complainant contends that the Respondent’s conducts demonstrates bad faith in targeting a trademark that is well-known in the financial services industry to attract Internet users for commercial gain and for the purpose of disrupting the business of a competitor.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsParagraph 4(a) of the Policy provides that in order to divest a respondent of a domain name, a complainant must demonstrate each of the following:
(i) the 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 of the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
Under paragraph 15(a) of the Rules, “[a] Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
A. Identical or Confusingly SimilarThe first element of a UDRP complaint “functions primarily as a standing requirement” and entails “a straightforward comparison between the complainant’s trademark and the domain name”. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7. The Complainant holds numerous trademark registrations for EFG as a word mark, and the Domain Name incorporates this mark in its entirety. The addition of the term “network” would not prevent a finding of confusing similarity under the first element. See WIPO Overview 3.0, section 1,8, It is not necessary to assess the Complainant’s claim in addition for rights in EFG as an unregistered mark. As usual, the generic Top-Level Domain (“gTLD”) “.com” is disregarded as a standard registration requirement. See WIPO Overview 3.0, section 1.11.2.
The Panel finds, therefore, that the Domain Name is confusingly similar to the Complainant’s registered EFG trademark for purposes of the Policy, paragraph 4(a)(i) and concludes that the Complainant has established the first element of the Complaint.
B. Rights or Legitimate InterestsParagraph 4(c) of the Policy gives non-exclusive examples of instances in which a respondent may establish rights or legitimate interests in a domain name, by demonstrating any of the following:
(i) before any notice to it of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) that the respondent has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Because a respondent in a UDRP proceeding is in the best position to assert rights or legitimate interests in a domain name, it is well established that after a complainant makes a prima facie case, the burden of production on this element shifts to the respondent to come forward with relevant evidence of its rights or legitimate interests in the domain name. See WIPO Overview 3.0, section 2.1.
The Complainant has established trademark rights, a lack of permissive use, and the use of the Domain Name only for a website that misleadingly displayed the Complainant’s contact information and advertised what appears to be a pyramid investment scheme with highly suspicious elements rather than a bona fide offering of goods or services. Thus, the Panel finds that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the Domain name. This shifts the burden of production to the Respondent. The Respondent has not come forward with any evidence of rights or legitimate interests, and none are apparent in a perusal of the Respondent’s website associated with the Domain Name.
The Panel concludes that the Complainant has established the second element of the Complaint.
C. Registered and Used in Bad FaithThe Policy, paragraph 4(b), furnishes a non-exhaustive list of circumstances that “shall be evidence of the registration and use of a domain name in bad faith”, including the following cited by the Complainant (in which “you” refers to the registrant of the domain name):
“(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.”
The Complainant’s mark is well-known and long-established, and the Respondent’s website actually included one of the Complainant’s contact telephone numbers. The Respondent was clearly aware of the Complainant and its mark. The Respondent’s website advertised investment and wealth advisory services, as does the Complainant. The Respondent may not actually compete with the Complainant in providing such services in a purely technical sense, but the WIPO Overview 3.0, section 3.1.3, notes that panels have extended the concept of “competitor” beyond genuine trade competition to include “a person who acts in opposition to another” for some form of pecuniary gain.
In this case, the Domain Name incorporated the mark of a well-established, international Swiss private bank and used it for the Respondent’s website, falsely associating it with the Complainant through a description of similar services and even dishonestly listing the Complainant’s primary contact telephone number. The Panel finds that the Respondent intentionally attempted to attract, for commercial gain, Internet users to its website (or a website under its control) by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of such site. Furthermore, the Respondent’s website then promoted what has every appearance of being a pyramid scheme, similar to the foreign exchange trading scam reported a year earlier in Botswanan media. There does not appear to be any legitimate business conducted through the Respondent’s website. Moreover, the website solicited donations for a charitable foundation and “orphanage” that also appear to be fraudulent.
The Panel finds that this conduct meets the criteria identified in both Policy paragraphs 4(b)(iii) and (iv) and that the Respondent registered and used the Domain Name in bad faith within the meaning 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 Domain Name,
W. Scott Blackmer
Sole Panelist
Date: January 5, 2022