WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Exness Holdings CY Limited v. Mark Ding
Case No. D2013-0323
1. The Parties
The Complainant is Exness Holdings CY Limited of Nicosia, Cyprus.
The Respondent is Mark Ding of Luan, Anhui, China.
2. The Domain Name and Registrar
The disputed domain name <exness.info> is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 17, 2013. On February 18, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 18, 2013, 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 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 20, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was March 12, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 14, 2013.
The Center appointed James A. Barker as the sole panelist in this matter on March 20, 2013. 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.
On April 3, 2013, under paragraph 10 and 12 of the Rules, the Panel extended the due date for decision until April 8, 2013.
4. Factual Background
The Complainant has an international mark registered on January 19, 2012 for a figurative mark, which prominently includes the text EX EXNESS. The mark is registered in class 36 for insurance, financial affairs, monetary affairs, real estate affairs. The Complainant also has a mark registered in the United Kingdom for EX EXNESS.
The disputed domain name was registered by the Respondent on April 24, 2012, as confirmed by the Registrar and evidenced in the case file. At the date of this decision, the disputed domain name did not revert to an active website. The Complainant provided no other evidence of the use of the dispute domain name.
The Complainant operates a website at “www.exness.com”. The Complainant provided no direct evidence of its business. In lieu of adequate information in the Complaint, the Panelist visited the Complainant’s website. That website indicates that the Complainant is a broker on the foreign exchange, or “forex”, market. Forex traders are commercial operations to trade currencies with inter alia the intent of buying currencies when they are undervalued and selling them when they are overvalued.
The Complainant provides various information about itself on its website. Among other things, for 2012, the Complainant lists a number of its claimed achievements including:
“February — technical support service began operating 24/7; the international rating agency Global Banking & Finance Review awarded our company first place in the category Best Standard Forex Broker Asia 2012; the company was recognized as best broker in Russia in 2011 by the international internet publication International Business Times;
March — daily trading volume of the company's clients totalled more than 2 billion USD; the company again reduced margin requirements and for the first time on the market offered its clients 1: 2000 leverage.
April — localisation of the company's official website into 8 additional languages; the daily trading volume of the company's clients totalled more than 3 billion USD.
June — the company introduced a new system for partner commission payments.
July — winner in the categories Best Broker Middle East and Best Broker Russia according to the World Finance Awards.
August — opened registration for trading accounts on the interbank market in the ECN system.
September — EXNESS (Cy) Ltd., part of the EXNESS group of companies, received license №178/12 CySEC from the state regulatory body for investment companies in Cyprus. participated in the exhibition International Investment and Finance Expo in Guangzhou, China as a silver sponsor and won in the category Best Broker in Asia 2012, as decided by the organizers of the exhibition;
October — connected ten new payment systems.
November — successfully passed an audit for the company’s compliance with the quality management system requirements of the international standard ISO 9001: 2008; during this month the company's clients opened more than 10,000 trading accounts.
December — daily trading volume of the company’s clients exceeded 4 billion USD; The Russian company EXNESS LLC, part of the EXNESS group of companies, joined SRO NP CRFIN, a self-regulatory organization of leading Russian Forex brokers as a category “A” broker.”
A basic Google search for “exness” provides results that appear largely to relate to the Complainant.
5. Parties’ Contentions
The Complaint is very brief. The Complainant provides no direct evidence of its business or the reputation of its mark. The entirety of the substantive claims in the Complaint are reproduced as follows:
“The [Complainant] company owns a trademark number 1119502, registered on 19/01/2012 by WIPO, basic application: Cyprus, 04.07.2011, 79538 List of goods and services: 36 - Insurance, financial affairs, monetary affairs, real estate affairs. see Annex 3.
The domain name EXNESS.info consist [sic] of the registered trademark EXNESS. The company owns 200+ domains with EXNESS wording in them. The general domain name, which our company uses is EXNESS.com, which was registered in 2008 year, when the WIPO Case No. D2013-0323 <exness.info> company has been established.
The owner of the domain exness.info does not have the right to own this domain because it contains the name of our trademark (EXNESS), and the owner of this domain did not receive our written consent for registration.
By using the domain name, the Respondent intentionally attempted to attract for commercial gain, Internet users to the Respondent's web site, by creating a likelihood of confusion with the Complainant's mark as to the source.”
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, to succeed the Complainant must prove that:
(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 was registered and is being used in bad faith.
In considering these elements, paragraph 15(a) of the Rules provides that the Panel shall decide the Complaint on the basis of statements and documents submitted and in accordance with the Policy, the Rules and any other rules or principles of law that the Panel deems applicable. These elements are discussed in turn below, immediately after a procedural issue in relation to the adequacy of the Complaint.
A. Adequacy of the Complaint
Paragraph 3 of the Rules contains minimum requirements for a valid Complaint. Paragraph 3(b) of the Rules requires a Complainant to:
“(ix) Describe, in accordance with the Policy, the grounds on which the complaint is made including, in particular,
(1) the manner in which the domain name(s) is/are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(2) why the Respondent (domain-name holder) should be considered as having no rights or legitimate interests in respect of the domain name(s) that is/are the subject of the complaint; and
(3) why the domain name(s) should be considered as having been registered and being used in bad faith
“(The description should, for elements (2) and (3), discuss any aspects of Paragraphs 4(b) and 4(c) of the Policy that are applicable…)”.
The Complainant in this case provides only the briefest of claims on each of these grounds and little evidence to support them. The Panel had to verify some of the information by visiting the Complainant’s websites referred to in the Complaint, undertaking an Internet search for information about the Complainant and for the use of the dispute domain name.
The Panel considered whether the Complaint should be rejected for lack of evidence and argument. The Panel considers that, despite the weakness of the Complaint, all the facts of this case allow a decision to be made as outlined below.
B. Identical or Confusingly Similar
Under paragraph 4(a)(i) of the Policy, the Complainant must prove both that it has rights in a mark, and that the disputed domain name is identical or confusingly similar to that mark. The Complainant provided evidence to satisfy the requirement for it to demonstrate that it has rights in its EX EXNESS mark.
The disputed domain name is not identical to that mark. However the Panel finds that it is confusingly similar. The dominant element of the Complainant’s mark – “exness” – is wholly incorporated in the disputed domain name. Past decisions under the Policy have found confusing similarity where a domain name incorporates, wholly or partially, the primary and distinctive element of a complainant’s mark: see e.g. G. Bellentani 1821 S.p.A. v. Ms. Efisia Cuccuredda, WIPO Case No. D2003-0917. There was no evidence in the case file or otherwise that the mark has an association other than with the Complainant’s business. In these circumstances, the Panel considers there is an obvious likelihood of confusion with the Complainant’s mark. Accordingly the Panel finds that the disputed domain name is confusingly similar to the Complainant’s mark.
C. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy requires the Complainant to establish that the Respondent has no rights or legitimate interests in the disputed domain name. Once the Complainant establishes a prima facie case against the Respondent on this ground, the burden shifts to the Respondent to rebut it. The overall burden of proof remains with the Complainant. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270.
In this case, the Panel finds that the Complainant has presented the barest of prima facie cases against the Respondent. The Respondent has chosen not to respond to the Complaint. There is no evidence in the case file which suggests to the Panel that the Respondent might have a right or legitimate interest in the disputed domain name.
Had the Respondent chosen to submit even some reasonable reply, the weakness of the Complaint would put it at a high risk of failing to establish its case. However, by choosing to submit no reply, the Respondent has provided no explanation or evidence as to whether there is a legitimate connection is between the term “exness” and its activities. In the absence of such an explanation, the Panel considers that the only reasonable inference is that the Respondent registered the disputed domain name because of its potential trademark value. This conclusion is supported by information on the Complainant’s website, which suggests that the Complainant has developed some reputation for its services in China, where the Respondent has its address.
This does not, however, mean that the Complainant established a strong case against the Respondent. The Complainant provides no direct evidence of the reputation of its mark. The Complainant provided no evidence of the extent of its reputation on the Internet, its market share, the extent of its advertising or revenue, or its reputation in a particular segment of the relevant market. Despite this, establishing a prima facie case requires only that the Complainant establish a colorable case against the Respondent. The bare claims made by the Complainant, the contextual information gathered by the Panel, and the lack of a Response, together indicate on balance that the Respondent has no rights or legitimate interests in the disputed domain name. Further, the case file otherwise contains no evidence which suggests that the Respondent has rights or legitimate interests in the disputed domain name.
Accordingly, the Panel finds that the Complainant has established its case under paragraph 4(a)(ii) of the Policy.
D. Registered and Used in Bad Faith
Bad faith may be demonstrated where the evidence indicates that the Respondent registered and used the disputed domain name primarily with a view to taking unfair advantage of the Complainant’s trade mark rights and reputation. See e.g. SingTel Optus Pty v. Xnet, WIPO Case No. D2004-0734.
As noted above, the Complaint merely asserts that the Respondent has intentionally attempted to attract, for commercial gain, Internet users, to its site or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source of its website. That claims is obviously made in relation to paragraph 4(b)(iv) of the Policy. For a Complainant to make out its case under this paragraph requires the Panel to find those circumstances to be present.
In this case, there is no direct evidence as to the Respondent’s motivation in registering and then using the disputed domain name. At the date of this decision, the disputed domain name does not resolve to an active website.
There is no evidence of an objective connection between the Respondent and the term “exness”. While the Complainant provided no evidence of the origin of that term, it does not appear to the Panel to have a common meaning. The Complainant’s business and trade mark rights predate the registration of the disputed domain name by the Respondent. The Complainant appears to have prominent presence on the Internet associated with the term “exness”. Accordingly, there is an inference that the Respondent was aware of the Complainant’s mark when it registered the disputed domain name. For the purpose of the Policy, it is well established that the further requirement for “use” of the disputed domain name can be satisfied by the Respondent’s passive holding of the domain name in circumstances of bad faith: Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.
The Panel finds that the Complainant has therefore, despite the very limited information in the Complaint, established its case under paragraph 4(a)(iii) of the Policy.
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 <exness.info> be transferred to the Complainant.
James A. Barker
Date: April 8, 2013