The Complainant is FXCM Global Services, LLC, United States of America (“United States”), represented by SafeNames Ltd., United Kingdom.
The Respondent is Withheld for Privacy Purposes, Privacy service provided by Withheld for Privacy ehf, Iceland / Franz Heinz, Switzerland. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 9, 2021. On June 10, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 10, 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 June 16, 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 June 16, 2021. The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the .IO Domain Name Dispute Resolution Policy (the “Policy”), the Rules for .IO Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for .IO 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 June 21, 2021. In accordance with the Rules, paragraph 5, the due date for filing a Response was July 11, 2021. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on July 12, 2021. The Center appointed Kiyoshi Tsuru as the sole panelist in this matter on July 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 Background The Complainant is a London-based company founded in 1999, operating as a retail broker in the foreign exchange (“Forex”) market. The Complainant owns several trademark registrations for FXCM, including the following: Trademark No. Registration Jurisdiction Date of Registration FXCM 2620953 United States of America September 17, 2002 FXCM 003955523 European Union November 3, 2005 FXCM 1093998 Australia December 3, 2004 FXCM 301708173 Hong Kong, China September 6,2010 The Complainant is the registrant of the following domain names containing the trademark FXCM: The disputed domain name was registered on December 29, 2020. 5. Parties’ Contentions A. Complainant The Complainant asserted the following: That it is a London-based company founded in 1999, operating as a retail broker in the foreign exchange (“Forex”) market. That it is a leading provider of online Forex trading, CFD trading and related services. That it has many international offices, including in Europe, Hong Kong, China, and South Africa, among others. That it has earned many awards and accolades including: “Best Forex Trading Platform – Global” in 2020 by the Global Forex Awards, “Best Zero Commission Broker” in 2021 by ADVFN International Financial Awards, and “Best Online Trading App” in 2020 by Compare Forex Brokers. I. Identical or Confusingly Similar That owning trademark registrations prima facie satisfies the initial threshold for purposes of paragraph 4(a)(i) of the Policy. That the Complainant has several trademark registrations for FXCM. That the Complainant’s trademark has been associated with goodwill and has gained recognition, since it is distinctive and well-known within the relevant industry, which has been recognized by previous panels. That the disputed domain name is confusingly similar to the Complainant’s trademark FXCM. That the disputed domain name clearly contains the Complainant’s trademark, with the addition of the word “group”, which is a word that does not prevent the finding of confusing similarity. That the Panel should disregard the inclusion of the country code top-level domain (ccTLD) “.io” in the disputed domain name, since this is a standard registration requirement. II. Rights or Legitimate Interests That the Complainant has presented a prima facie case that the Respondent lacks rights to or legitimate interests in the disputed domain name. That, to the best of its knowledge, the Respondent does not have any trademark rights for FXCM. That there is no evidence that the Respondent retains unregistered trademark rights for FXCM. That the Respondent has never received any license from the Complainant to use its trademark in the disputed domain name. That the Respondent is using the disputed domain name, apparently, to offer the same services as the Complainant, namely online trading. That the disputed domain name falsely insinuates affiliation with the Complainant. That using the disputed domain name in a manner competitive to the Complainant, is not a bona fide use. That the FXCM is a well-known trademark. That, therefore, the Respondent is using the disputed domain name to attempt to lure users, which is a deceptive intent to pass-off as the Complainant. That the French financial market authority has listed the disputed domain name as fraudulent, which strongly suggests that the services purportedly offered by means of the website to which said disputed domain name resolves are illegitimate. That the Respondent is not commonly known as FXCM nor is it offering any legitimate goods or services under the Complainant’s FXCM trademark. That therefore, there is no plausible reason for the registration and use of the disputed domain name, other than taking advantage of the goodwill and valuable reputation attached to the FXCM trademark. That the nature of the disputed domain name suggests that the Respondent attempts to obtain financial gain through That the website to which the disputed domain name resolves encourages users to open an account. That therefore it is reasonable to infer that a user would then be encouraged to deposit money into an account to trade, and would enter in personal information, which is not an indication of legitimate noncommercial or fair use. III. Registered or Used in Bad Faith That the Complainant’s earliest trademark registration predates the creation date of the disputed domain name by 18 years. That the Respondent had knowledge of the Complainant’s well-known FXCM trademark when registering the disputed domain name, since it has associated the disputed domain name to the Complainant’s business. That the Respondent ignored a cease-and-desist letter sent by the Complainant on May 4, 2021. That the Respondent intentionally used the commercial value and goodwill of the Complainant’s trademark to confuse online users for the Respondent’s own gain through the perpetration of illegitimate financial offerings. That the disputed domain name is used to scam users into believing that they are dealing with the reputable and regulated FXCM trademark. That given the sensitive nature of the Complainant’s business, the Respondent’s actions are particularly egregious since online users potentially face severe financial loss due to the Respondent’s registration and use of the disputed domain name. That the Respondent had actual knowledge of the Complainant, and targeted it and its business activities by registering the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings According to 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 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 or is being used in bad faith. In view of the Respondent’s failure to submit a Response, the Panel may decide this proceeding on the basis of the Complainant’s undisputed factual allegations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, (see Encyclopaedia Britannica, Inc. v. null John Zuccarini, Country Walk,WIPO Case No. D2002‑0487, Groupe Auchan v. Roberto La Palombara,WIPO Case No. D2014-0660, and PJS International SA v. Carl Johansson,WIPO Case No. D2013-0807). The Panel deems it appropriate to cite decisions issued per the Uniform Domain Name Dispute Resolution Policy (“UDRP”) where appropriate. This is so because the Policy is based upon and is a variant of the UDRP, and because the present case requires the analysis of matters widely dealt with in UDRP proceedings. A. Identical or Confusingly Similar The Complainant has proven to be the owner of trademark registrations for FXCM in several jurisdictions. The disputed domain name The addition of the ccTLD “.io” to the disputed domain name is immaterial for purposes of assessing confusing similarity, since this is a technical requirement of the Domain Name System (“DNS”) (see Facebook, Inc. v. Ronal Yau,WIPO Case No. DIO2020-0001; and Carrefour v. Andre Machado,WIPO Case No. DIO2020-0004). The first element of the Policy has been met. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy sets forth the following examples as circumstances where a respondent may have rights or legitimate interests in the disputed domain name: (i) before any notice to you of the dispute, your 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) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or (iii) you are 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. This Panel agrees with the determination reached in FXCM Global Services LLC v. WhoisGuard Protected, Whoisguard Inc. / Jenny Sohia,WIPO Case No. D2018-1111, in that the FXCM trademark is well-known. The Complainant has asserted that it has not granted any license, permission, authorization, or other rights to the Respondent, to use its trademark FXCM (see Beyoncé Knowles v. Sonny Ahuja,WIPO Case No. D2010-1431; and Six Continents Hotels, Inc. v. IQ Management Corporation,WIPO Case No. D2004‑0272). The Respondent did not contest these allegations. The Complainant has argued that the Respondent is not and has not been commonly known by the disputed domain name since, when searching online for “XFCM”, the first results listed by the relevant search engine refer to the Complainant, its trademark, and its services. The Respondent has not contended this argument. The Complainant has proven that the website to which the disputed domain name resolves offers online trading, i.e., the same services that the Complainant offers, inviting consumers to deposit funds, which more likely than not, will result in financial losses for Internet users. Therefore, the Panel finds that the disputed domain name is used as a means for taking advantage of the goodwill and the reputation of the Complainant for commercial gain, which does not constitute a bona fide offering of goods and services. The aforementioned behavior constitutes fraudulent conduct, which has been noted by the French financial market authority, who has red-flagged the disputed domain name, listing it as a fraudulent domain name. Therefore, it cannot be deemed that the Respondent has rights to or legitimate interests in the disputed domain name. On the contrary, the acts of impersonation and phishing perpetrated by the Respondent are illegal, and thus cannot confer to the Respondent any rights to or legitimate interests in the disputed domain name (see section 2.13.1 of the WIPO Overview 3.0; see also Self-Portrait IP Limited v. Franklin Kelly,WIPO Case No. D2019-0283). The Respondent’s use of the disputed domain name shows that the Respondent has targeted the Complainant and its business. Therefore, the Respondent’s conduct cannot be considered as a legitimate, noncommercial, or fair use of the disputed domain name (see Wachovia Corporation v. Peter Carrington, WIPOCase No. D2002-0775; and Edmunds.com, Inc. v. Digi Real Estate Foundation WIPO Case No. D2006-1043). Accordingly, the Complainant has satisfied the requirements of the second element of the Policy. C. Registered or Used in Bad Faith According to paragraph 4(b) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration or use of a domain name in bad faith: (i) circumstances indicating that you have registered or you have acquired the 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 trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or (ii) you have 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 you have engaged in a pattern of such conduct; or (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 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 your website or location or of a product or service on your website or location. It is important to point out that paragraph 4(a) of the Policy states that bad faith can be found in either the registration or the use of the disputed domain name. As previously stated, the Complainant owns several trademark registrations for the XFCM trademark in different countries. Given the well-known status of said trademark and considering that XFCM is a fanciful trademark that is not a dictionary word, this Panel finds that the Respondent knew the Complainant at the time of registration of the disputed domain name, which constitutes bad faith registration under the Policy. The fact that the Respondent registered the disputed domain name which entirely reproduces the Complainant’s well-known trademark XFCM, with the addition of the term “group”, shows that the Respondent has targeted the Complainant, which constitutes opportunistic bad faith (see section 3.2.1 of the WIPO Overview 3.0; see also L’Oréal v. Contact Privacy Inc. Customer 0149511181 / Jerry Peter,WIPO Case No. D2018-1937; Gilead Sciences Ireland UC / Gilead Sciences, Inc. v. Domain Maybe For Sale c/o Dynadot,WIPO Case No. D2019-0980; Dream Marriage Group, Inc. v. Romantic Lines LP, Vadim Parhomchuk,WIPO Case No. D2020-1344; and Valentino S.p.A. v. Qiu Yufeng, Li Lianye,WIPO Case No. D2016-1747). Previous panels appointed under the UDRP have found that the mere registration by an unauthorized party of a domain name that is identical to a well-known trademark can constitute bad faith in itself (see section 3.1.4 of the WIPO Overview 3.0, see also Toyota Jidosha Kabushiki Kaisha d/b/a Toyota Motor Corporation; Toyota Motor Sales, U.S.A., Inc., and Toyota Motor Sales De Mexico, S. De R.L. de C.V. v. Salvador Cobian, WIPO Case No. DMX2001-0006,and Ferrari S.p.A. v. Ms. Lee Joohee (or Joo-Hee), WIPO Case No. D2003-0882). Notwithstanding that the Policy requires the Complainant to prove bad faith either in the registration or use of the disputed domain name, given the grave nature of the conduct of the Respondent, the Panel will address the issue of bad faith use. As discussed previously, the Respondent has impersonated the Complainant as part of a phishing scheme to deceive Internet users by making them believe that they are dealing with the Complainant, being that said users are exposed to the risk of opening an account for trading online, which they think to be legitimate, when the account is actually false, which could be leading to the misappropriation of their personal and financial information, and their funds. This fraudulent conduct clearly constitutes bad faith use under the Policy (see section 3.4 of the WIPO Overview 3.0; see also BHP Billiton Innovation Pty Ltd. v. Domains By Proxy LLC / Douglass Johnson, WIPO Case No. D2016-0364; National Westminster Bank plc v. Sites / Michael Vetter,WIPO Case No. D2013-0870; Instagram, LLC v. Whois privacy protection service / Olga Sergeeva / Ivan Ivanov / Privacy Protect, LLC (privacy Protect.org), supra; Télévision Française 1 v. Kenechi Arene, WIPO Case No. D2019-1578). 7. Decision For 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 Kiyoshi Tsuru
Sole Panelist
Date: August 6, 2021
Full & Egal Universal Law Academy