WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ironfx Global Limited v. MR Qaisar Saeed Butt / Moniker Privacy Services
Case No. D2015-1221
1. The Parties
The Complainant is Ironfx Global Limited of Limassol, Cyprus, internally represented.
The Respondent is MR Qaisar Saeed Butt of Punjab, Pakistan, self-represented / Moniker Privacy Services of Florida, the United States of America.
2. The Domain Name and Registrar
The disputed domain name <ironfxscam.com> is registered with Moniker Online Services, LLC (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 15, 2015. On July 15, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 17, 2015, 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 July 28, 2015 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 July 28, 2015.
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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 4, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was August 24, 2015. The Respondent did not submit a formal response. The Center received several email communications from the Respondent on July 28, 2015 and August 5, 2015.
The Center appointed Adam Taylor as the sole panelist in this matter on September 7, 2015. 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.
The Center received another email communication from the Respondent on September 8, 2015.
4. Factual Background
The Complainant, which trades as "IronFx", is an online foreign exchange derivatives service provider incorporated in Cyprus and regulated by the Cyprus Securities and Exchange Commission. It has retail and institutional customers in over 180 countries, with 21 offices worldwide.
The Complainant's own website is at "www.ironfx.com".
The Complainant owns international trade mark no. 1129032 for the stylized term IRONFX, registered June 28, 2012, in class 36.
The Respondent, a client of the Complainant, registered the disputed domain name on May 9, 2015.
At an unknown date there was a criticism website at the disputed domain name headed: "Beware of IronFx.Com" in which the Respondent complained about his inability to access funds held with the Complainant and stated that the purpose of the site was to share his experience with other clients of the Complainant. There were links to various sites allegedly relating to various complaints against the Complainant.
5. Parties' Contentions
The disputed domain name is confusingly similar to the Complainant's trade mark phonetically, visually and conceptually because it incorporates the Complainant's mark exactly, with the addition of the term "scam".
According to the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), domain names consisting of a trade mark plus negative term are considered confusingly similar to the trade mark for the purpose of the first element.
The Complainant has used its domain name in good faith since 2010 whereas the Respondent has never been known by the disputed domain name.
The Complainant has not authorised the Respondent to use the disputed domain name.
The Respondent's lack of rights or legitimate interests is evidenced by the Respondent's use of the disputed domain name, not in connection with a bona fide offering of goods or services, but for a campaign against the Complainant using its trade mark and domain name. The Respondent's sole purpose was to disrupt the Complainant's business.
The Respondent registered and used the disputed domain name in bad faith. The Respondent was aware of the Complainant's trade marks as he was a client of the Complainant when he registered the disputed domain name. His main purpose in registering and using the disputed domain name was to direct users to his website at the disputed domain name, which defamed the Complainant and thereby disrupted its business and damaged its mark.
The Respondent did not submit a formal Response.
6. Discussion and Findings
A. Informal Response
On July 28, 2015 (immediately following service of the amended Complaint), the Respondent sent two emails to the Center commenting on the substantive issues in the case. No formal response was filed despite the fact that, on receipt of the second email, the Center had reminded the Respondent that this was due on August 24, 2015. On August 5, 2015, the Respondent sent two other email communications.
The Respondent's emails did not comply with the formal requirements for a response set out in paragraph 5 of the Rules. For example, there was no statement of truth. Given that the Respondent was left in no doubt about the need to file a formal response, but simply disregarded the requirement, the Panel declines to admit the emails in lieu thereof.
B. Supplemental Filing
On September 8, 2015, following appointment of the Panel, the Respondent sent another email to the Center with some additional substantive comments.
Paragraphs 10 and 12 of the Rules in effect grant the Panel sole discretion to determine the admissibility of supplemental filings. Paragraph 10(d) states: "The Panel shall determine the admissibility, relevance, materiality and weight of the evidence". Paragraph 12 states: "In addition to the complaint and the response, the Panel may request, in its sole discretion, further statements or documents from either of the Parties".
The principles which the Panel should apply in deciding whether or not to admit supplemental filings have been considered in many cases under the Policy. See, e.g., The E.W. Scripps Company v. Sinologic Industries, WIPO Case No. D2003-0447. The principles include: that additional evidence or submissions should only be admitted in exceptional circumstances, such as where the party could not reasonably have known the existence or relevance of the further material when it made its primary submission; that if further material is admitted, it should be limited so as to minimize prejudice to the other party or the procedure; and that the reasons why the Panel is invited to consider the further material should, so far as practicable, be set out separately from the material itself.
The Respondent has made no effort to demonstrate exceptional circumstances or to comply with the other requirements above. Instead, the email largely reiterates the Respondent's earlier emails. Accordingly, the Panel declines to admit this later email also.
C. Identical or Confusingly Similar
The Complainant has rights in the mark IRONFX by virtue of its registered trade mark.
The disputed domain name is confusingly similar to the Complainant's trade mark. Paragraph 1.3 of WIPO Overview 2.0 explains the consensus view that "[g]enerally, a domain name consisting of a trademark and a negative or pejorative term (such as [trademark] sucks.com) would be considered confusingly similar to the complainant's trademark for the purpose of satisfying the standing requirement under the first element of the UDRP (with the merits of such cases typically falling to be decided under subsequent elements)."
Here the disputed domain name consists of the Complainant's trade mark plus the negative term "scam".
Accordingly, the Panel concludes that the disputed domain name is confusingly similar to the Complainant's trade mark.
The Panel therefore finds that the Complainant has established the first element of paragraph 4(a) of the Policy.
D. Rights or Legitimate Interests
The Complainant argues that the Respondent's use of the disputed domain name for a "campaign" against the Complainant is evidence of a lack of rights or legitimate interests.
In support, the Complainant invokes IronFX Global Limited v. Bobs Limited, Peter Smith, WIPO Case No. D2014-1703, a successful UDRP case undertaken by the Complainant. However, that case does not assist the Complainant here as the disputed domain names were deliberate misspellings of the Complainant's trade mark and were used for competing services whereas, here, the circumstances are entirely different: the disputed domain name consists of the trade mark plus a negative term and has been used for a criticism site.
In this case, the issue is whether the Respondent's criticism site amounts to "legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark…" in accordance with paragraph 4(c)(iii) of the Policy.
The circumstances which panels have tended to take into account in considering whether criticism sites generate rights and legitimate interests are discussed in detail in paragraph 2.4 of WIPO Overview 2.0.
In this case, the Panel considers that Respondent's criticism website does indeed generate rights and legitimate interests for the following reasons:
1. The disputed domain name does not consist purely of the Complainant's trade mark or, even, the Complainant's trade mark plus an anodyne descriptive term; rather it includes the derogatory term "scam", thereby clearly signalling its purpose.
2. There is no evidence that the Respondent has derived any commercial advantage from the website at the disputed domain name.
3. There is no evidence that the website reflects anything other than the Respondent's genuine views, albeit views which are objectionable to the Complainant.
4. It is immediately clear to Internet users visiting the website at the disputed domain name that it is not operated by the Complainant.
The Panel therefore concludes that the Complainant has failed to establish the second element of paragraph 4(a) of the Policy.
This conclusion does not of course reflect any finding by the Panel as to the veracity or otherwise of the content of the Respondent's website. The Panel is in no position to make any such assessment. This outcome simply means that, in the Panel's view, the Complainant has not proved that the circumstances of the case come within the relatively limited confines of the Policy. It remains open to the Complainant to pursue defamation or other court proceedings should the Complainant consider it appropriate to do so.
E. Registered and Used in Bad Faith
It is unnecessary to consider this aspect in view of the Panel's conclusion above.
For the foregoing reasons, the Complaint is denied.
Date: September 17, 2015