The Complainant is Axiory Global Ltd., Belize, represented by Akkliment, Czech Republic.
The Respondent is Privacy service provided by Withheld for Privacy ehf, Iceland / Edegware Ezekiel, eConnect, Nigeria.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 3, 2021. On December 6, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 6, 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 December 7, 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 on December 8, 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 December 14, 2021. In accordance with the Rules, paragraph 5, the due date for Response was January 3, 2022. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 4, 2022.
The Center appointed William F. Hamilton as the sole panelist in this matter on January 10, 2022. 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 global online financial asset trading platform and multi-asset broker offering retail investors forex trading, commodities trading, CFD trading, and cryptocurrency trading. The Complainant was founded in 2011 and maintains its principal office in Belize City, Belize.
The Complainant operates the website “www.axiory.com”.
The Complainant has obtained multiple registrations for the mark AXIORY (the “Mark”) including, but not limited to, International registration no. 1309218, registered on March 29, 2016, designating various jurisdictions under the Madrid Protocol.
The disputed domain name was registered on July 20, 2021. On October 18, 2021, the Complainant sent the Respondent a cease-and-desist letter. The Respondent did not respond to the Complainant’s cease and desist letter. The Complainant thereafter initiated this proceeding.
The disputed domain name does not currently resolve to an active website. However, the Complainant provided evidence that the disputed domain name previously resolved to a finance and cryptocurrency related website.
5. Parties’ Contentions A. ComplainantThe Complainant asserts the disputed domain name is confusingly similar to the Mark because the disputed domain name is composed by joining the term “market” as a suffix to the Complainant’s Mark.
The Complainant asserts that the Complainant never authorized the Respondent to use the disputed domain name, that the Respondent is not generally known by the disputed domain name, and that the Respondent has never engaged in any bona fide commercial activity in connection with the disputed domain name.
The Complainant asserts that the disputed domain name was registered and used to disrupt the Complainant’s business and to confuse and to phish for personally identifying information from unsuspecting Internet users.
The Complainant requests that the disputed domain name’s registration be cancelled.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsUnder paragraph 4(a) of the Policy, to succeed the Complainant must satisfy the Panel that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and,
(iii) the disputed domain name was registered and is being used in bad faith.
A. Identical or Confusingly SimilarThe Panel finds that the disputed domain name is confusingly similar to the Complainant’s Mark.
The disputed domain name is composed entirely of the Complainant’s Mark and the additional term “market”. A domain name which wholly incorporates a complainant’s registered mark is sufficient to establish confusingly similarity for the purposes of the Policy when, as here, the Mark is a clearly recognizable within the disputed domain name notwithstanding the addition of a descriptive term as a suffix. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8 (“where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographic, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element”); Regeneron Pharmaceuticals, Inc. v. Registration Private, Domains by Proxy, LLC / Regeneron Careers,WIPO Case No. D2017-0013; Bombas LLC v. Domain Administrator, See PrivacyGuardian.org / Maryellen J Dillard, Maryellen Dillard,WIPO Case No. D2021-0609.
The country code Top-Level Domain (“ccTLD”) of the disputed domain name, in this case “.co”, may be disregarded for the purposes of assessment under the first element, as it is viewed as a standard registration requirement. See WIPO Overview 3.0, section 1.11.1.
The Complainant has met its burden under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate InterestsThe Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
The Complainant has specifically disavowed providing the Respondent with permission to use the disputed domain name or the Mark. The Respondent is not affiliated with the Complainant and does not have any business relationship with the Complainant. There is no evidence that the Respondent has conducted any bona fide business under the disputed domain name or is commonly known by the disputed domain name. Compagnie de Saint Gobain v. Com-Union Corp.,WIPO Case No. D2000-0020.
The Complainant has thus established a prima facie case in its favor, which shifts the burden of production on this point to the Respondent. The Respondent, however, has failed to come forth with any evidence showing any rights or legitimate interests in the disputed domain name.
Furthermore, the nature of the disputed domain name which prominently incorporates the Mark in its entirety, in addition to a term related to the Complainant’s area of business, carries a risk of implied affiliation. See WIPO Overview 3.0, section 2.5.1
The facts and circumstances presented to the Panel demonstrate that the Respondent does not have any rights or legitimate interests in the disputed domain name. The Complainant has met its burden under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad FaithUnder paragraph 4(b) of the Policy, bad faith may be established by any one of the following scenarios:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark 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 domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website 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 the respondent’s website or location or of a product or service on the respondent’s website or location.
The Panel finds the disputed domain name was registered and is being used in bad faith.
A simple Internet search, normally undertaken before registering a domain name, would have disclosed the Complainant’s Mark. The Mark is not a common or descriptive term. The Panel finds it more likely than not that the Respondent was aware of the Complainant’s Mark when registering the disputed domain name to provide services within the same industry as the Complainant.
Noting the composition of the disputed domain name, it is difficult to conceive of any use that the Respondent might make of the disputed domain name without the Complainant’s consent that would not involve bad faith. See, e.g., Telstra Corporation Limited v. Nuclear Marshmellows,WIPO Case No. D2000‑0003; Verner Panton Design v. Fontana di Luce Corp,WIPO Case No. D2012-1909; DPDgroup International Services GmbH & Co. KG v. Wise One, Wilson TECH,WIPO Case No. D2021-0109; Monster Energy Company v. PrivacyDotLink Customer 116709 / Ferdinand Nikolaus Kronschnabl,WIPO Case No. D2016-1335. Indeed, the Respondent’s website offers similar financial services as the services offered by the Complainant, and the Respondent’s website has a similar look and feel as the Complaint’s website. In addition to adopting the Complainant’s distinctive Mark and adding to the Mark a term that describes the Complainant’s services to form the disputed domain name, the Respondent’s website prominently featured another of Complainant’s trademarks, namely the highly stylized “X” of the Complainant’s registered figurative Mark . There can be little doubt that the Respondent registered and used the disputed domain name in bad faith to confuse Internet users seeking the Complainant for Respondent’s commercial gain.
The current passive holding of the disputed domain name does not absolve the Respondent of bad faith registration and use, and, in fact, under the circumstances of this case, supports a finding of bad faith registration and use. See WIPO Overview 3.0, section 3.3; see also, Medtronic, Inv. V. Roohi B Rasheed, Roohi B Rasheed,WIPO Case No. D2020-1161.
The Complainant has met its burden under 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
William F. Hamilton
Sole Panelist
Date: January 24, 2022