The Complainant is FXCM Global Services, LLC, United States of America, represented by SafeNames Ltd., United Kingdom.
The Respondent is 廖春桃 (Chun Tao Liao), China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on October 23, 2020. On October 27, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 28, 2020, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the China ccTLD Dispute Resolution Policy (the “Policy”), the China ccTLD Dispute Resolution Policy Rules (the “Rules”), and the WIPO Supplemental Rules for China ccTLD Dispute Resolution Policy and China ccTLD Dispute Resolution Policy Rules (the “WIPO Supplemental Rules”). In accordance with the Rules, Articles 5 and 6, and Articles 14 to 16, and the WIPO Supplemental Rules, Paragraph 4(d), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 5, 2020. In accordance with the Rules, Articles 17 and 49, the due date for Response was November 25, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 26, 2020. The Center appointed Matthew Kennedy as the sole panelist in this matter on December 14, 2020. 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, Article 29. 4. Factual Background The Complainant was founded in 1999 and provides online foreign exchange (“Forex”) trading, Contract for Difference (“CFD”) trading and related services. It has international offices, including one in Hong Kong, China. The Complainant holds multiple trademark registrations for FXCM, including International trademark registration number 872083, registered on December 3, 2004, designating multiple jurisdictions including China, specifying services in classes 36 and 41 including international commodity trading and exchange services for others; and Chinese trademark registration number 12457692, registered on March 28, 2016, (assignment to the Complainant recorded in early 2018) specifying services in class 36, including money exchange and financial information services. The Complainant has registered the domain name The Respondent is an individual resident in China. The disputed domain name was registered on April 5, 2020. At the time at which the Complaint was filed, the disputed domain name resolved to a website in Chinese and English that prominently displayed the Complainant’s FXCM mark and logo, as well as the Complainant’s address and company profile, and offered the same type of financial services as the Complainant. A page on the website invited Internet users to create an account by inputting personal information such as mobile phone number and address. At the time of this decision, the disputed domain name no longer resolves to an active website; rather, it is passively held. 5. Parties’ Contentions A. Complainant The Complainant’s legal representative sent a cease-and-desist letter to the Respondent on August 13, 2020. The disputed domain name is confusingly similar to the Complainant’s FXCM trademark. The addition of the letters “hk” – referring to “Hong Kong”, China – does not negate confusing similarity. The Respondent lacks rights or legitimate interests in respect of the disputed domain name. The Respondent does not have any trademark rights to the term “fxcm”. The Respondent uses the disputed domain name to host a website designed to insinuate false affiliation or endorsement by the Complainant. The website displays the logo of the Complainant and financial information regarding the Complainant. The Respondent is not commonly known by the term “fxcm”. The Respondent is not making a legitimate noncommercial or fair use of the disputed domain name. The disputed domain name was registered and is being used in bad faith. The Complainant’s first trademark registration in China for FXCM predates the creation of the disputed domain name by 16 years. The Complainant has accrued substantial goodwill in that mark. The content of the Respondent’s website features services similar to those found on the Complainant’s official website, and is presented in a manner designed to cause confusion as to the source, sponsorship or affiliation to the Complainant of the Respondent’s website. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of the Proceeding According to Article 6 of the Policy and Article 8 of the Rules, the language of the proceeding shall be Chinese, unless otherwise agreed by the Parties or determined by the Panel in exceptional circumstances. The Complainant has requested that the language of the proceeding be English. Its main arguments are that the website attached to the disputed domain name is fully available in English, which demonstrates that the Respondent is sufficiently capable of comprehending English; the Respondent operates other English language websites and has registered other domain names containing English words; and translating the Complaint into Chinese will lead to undue delay and substantial expense. In accordance with Article 31 of the Rules, the Panel shall ensure that each Party be treated with equality and given a fair opportunity to present its case. The Panel shall also ensure that the proceedings take place with due expedition. Therefore, when considering the Complainant’s request, the Panel should take into account whether the Respondent is able to understand the language of the Complaint, and whether the Complainant would be disadvantaged by having to translate the Complaint into Chinese. See Laure de Sagazan v. 刘岩,WIPO Case No. DCN2019-0010; and Forest Tosara Limited v. 王晓文 (Wang Xiao Wen),WIPO Case No. DCN2019-0008. The Panel observes that the Complaint was filed in English. The disputed domain name resolves to a website with an English version from which it is reasonable to infer that the Respondent understands that language. Despite the Center having sent notice of the Complaint in Chinese and English, the Respondent has not expressed any interest in participating in this proceeding. Translation of the Complaint into Chinese would create an undue delay. Having considered all the circumstances, this Panel determines under Article 6 of the Policy and Article 8 of the Rules that the language of the proceeding is English. The Panel would have accepted a Response in Chinese but none was filed. 6.2 Substantive Issues Article 8 of the Policy provides that a complaint against a registered domain name shall be supported if the following conditions are fulfilled: - the disputed domain name is identical with or confusingly similar to the Complainant’s name or mark in which the Complainant has civil rights or interests; Article 7 of the Policy states that the Complainant and the Respondent shall bear the burden of proof for their own claims. A. Identical or Confusingly Similar to the Complainant’s Name or Mark in which the Complainant has Civil Rights or Interests Based on the evidence submitted, the Panel finds that the Complainant has rights in the FXCM mark. The disputed domain name wholly incorporates the Complainant’s FXCM mark as its initial element. It also incorporates the letters “hk”, which are an abbreviation of “Hong Kong”, China, and are a geographical element. The Panel does not consider that the addition of this element avoids a finding of confusing similarity with a trademark. The disputed domain name also include a Second-Level Domain suffix (“.com.cn”). This element is generally disregarded in the comparison between a domain name and a trademark. See Facebook Technologies, LLC v.曹丛刚（Cao Cong Gang),WIPO Case No. DCN2019-0015. Therefore, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has civil rights or interests. The Complainant has satisfied the first element in Article 8 of the Policy. B. Rights or Legitimate Interests Article 10 of the Policy sets out the following circumstances which, without limitation, if found by the panel, may be evidence of the respondent’s rights to, or legitimate interests in, a disputed domain name, for the purposes of Article 8 of the Policy: - the Respondent uses of the [disputed] domain name or a name corresponding to the [disputed] domain name in connection with a bona fide offering of goods or services; In the present dispute, the Respondent formerly used the disputed domain name in connection with a website that displayed the Complainant’s mark and logo, address and company information and offered the same type of services as the Complainant. It is clear from the Complaint that the Respondent is not authorized by, or affiliated with, the Complainant in any way. The disputed domain name no longer resolves to any active website. The Panel does not find that either of these uses is a use of the disputed domain name in connection with a bona fide offering of goods or services within the terms of Article 10(a) of the Policy. The Respondent’s name is listed in the Registrar’s WhoIs database as 廖春桃 (Chun Tao Liao), not the disputed domain name. There is no evidence that the Respondent has been commonly known by the disputed domain name within the terms of Article 10(b) of the Policy. The Respondent was formerly using the disputed domain name in connection with a purported offering of commercial services. He now holds the disputed domain name passively. Neither use is a legitimate noncommercial or fair use of the disputed domain name within the meaning of Article 10(c) of the Policy. In summary, the Panel considers that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent failed to rebut that prima facie case because he did not respond to the Complainant’s contentions. Therefore, based on the record of this proceeding, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has satisfied the second element in Article 8 of the Policy. C. Registered or Used in Bad Faith Article 9 of the Policy provides that certain circumstances may be evidence of the registration or use of a domain name in bad faith. The third of these is as follows: - the disputed domain name holder has registered or acquired the [disputed] domain name for the purpose of damaging the Complainant’s reputation, disrupting the Complainant’s normal business or creating confusion with the Complainant’s name or mark so as to mislead the public. The disputed domain name was registered in 2020, many years after the Complainant acquired its first FXCM trademark registration, including in China. The disputed domain name wholly incorporates the FXCM trademark as its initial element, combining it with the letters “hk” which give the impression that the disputed domain name refers to the Complainant’s Hong Kong, China office. The website formerly associated with the disputed domain name displayed the Complainant’s FXCM mark and logo and the Complainant’s address and company profile. This all indicates to the Panel that the Respondent was aware of the Complainant’s mark at the time that he registered the disputed domain name and that he targeted that mark. The disputed domain name was formerly used in connection with a website that displayed the Complainant’s FXCM mark and logo and the Complainant’s address and company profile and offered the same type of services as the Complainant. This all gave the false impression that the website was operated by, or affiliated with, the Complainant. In view of these circumstances, the Panel finds that the Respondent registered the disputed domain name for the purpose of creating confusion with the Complainant’s mark so as to mislead the public. The Panel notes that the use of the disputed domain name has now changed and that it no longer resolves to any active website. This does not alter the Panel’s conclusion; in fact, it may be a further indication of bad faith. Therefore, the Panel finds that the Respondent registered and has been using the disputed domain name in bad faith. The Complainant has satisfied the third element in Article 8 of the Policy. 7. Decision For the foregoing reasons, in accordance with Article 14 of the Policy and Article 40 of the Rules, the Panel orders that the disputed domain name Matthew Kennedy
- the disputed domain name holder has no right or legitimate interest in respect of the [disputed] domain name or major part of the [disputed] domain name;
- the disputed domain name holder has registered or has been using the [disputed] domain name in bad faith.
- the Respondent has been commonly known by the [disputed] domain name, even if he has acquired no trademark or service mark rights;
- the Respondent is making a legitimate noncommercial or fair use of the [disputed] domain name, without intent of or commercial gain to misleadingly divert consumers.
Sole Panelist
Date: December 28, 2020
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