WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Chicago Mercantile Exchange Inc. v. Oleg Osmachkin
Case No. D2017-1082
1. The Parties
The Complainant is Chicago Mercantile Exchange Inc. of Chicago, Illinois, United States of America ("United States"), represented by Norvell IP llc, United States.
The Respondent is Oleg Osmachkin of Moscow, Russian Federation.
2. The Domain Name and Registrar
The disputed domain name <cmetrades.com> is registered with eNom, Inc. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 1, 2017. On Jun 2, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 5, 2017, 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 9, 2017, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amended Complaint. The Complainant filed an amended Complaint on June 12, 2017.
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 paragraphs 2 and 4 of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 13, 2017. In accordance with paragraph 5 of the Rules, the due date for Response was July 3, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 4, 2017.
The Center appointed Brigitte Joppich as the sole panelist in this matter on July 11, 2017. 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 paragraph 7 of the Rules.
4. Factual Background
The Complainant is part of the CME group, which operates four markets, inter alia, the Chicago Mercantile Exchange ("CME"), an American financial and commodity derivative exchange, originally founded in 1898 under a different name. Today, the Complainant is one of the world's leading financial institutions and operates in various countries, including the United States, Canada, Brazil, the United Kingdom of Great Britain and Northern Ireland ("United Kingdom"), Ireland, Singapore, China, Republic of Korea, India, and Japan. In 2016, the Complainant and its related entities generated revenues in excess of USD 3.3 billion. In 2015, more than 3.5 billion contracts were traded through the Complainant's exchanges with a notional value of USD 1 quadrillion.
The Complainant owns several trademark registrations for CME worldwide, inter alia, United States trademark registration No. 1,085,681 for CME, registered on February 14, 1978, for services in class 36, claiming first use in commerce as early as 1919, and United States trademark registration No. 3,084,640 for goods and services in classes 9 and 42 (hereinafter referred to as "the CME Marks"). In addition, the Complainant owns numerous domain names including the CME Marks, inter alia, <cme.com>, first registered in 1994. The CME Marks have been found to be famous and widely known by numerous previous UDRP panels (see Chicago Mercantile Exchange Inc. and CME Group Inc. v. Domain Administrator, PrivacyGuardian.org / Domain Administrator, QHoster.com, WIPO Case No. D2016-0973 (<cmemarkets.net>); Chicago Mercantile Exchange Inc., CME Group Inc. v. leemungjin, WIPO Case No. D2015-0672 (<ironcme.com>); Chicago Mercantile Exchange Inc. v. Whois Privacy Protection Service Inc./Nguyen Thanh Cong, WIPO Case No. D2010-1766 (<cmemarkets.com>); Chicago Mercantile Exchange Inc. and CME Group Inc. v. Romeo Bato Jr. and Cocoo Restaurant, WIPO Case No. D2012-1619 (<cmegroup-international.com>)).
The disputed domain name was registered on December 2, 2015. It is used in connection with a website, which contains information on a London-based company, CMETrades Limited, which, according to the information provided on the website, is a "young and dynamic legal investment company which focus [sic] its activity on stock and foreign exchange trading". The website also provides information regarding the trading of "FOREX", which has been part of the Complainant's core business for the last several decades.
5. Parties' Contentions
The Complainant contends that the Respondent's website is fraudulent and provided printouts from third parties' websites, such as "www.binaryscamwatchmonitor.com", stating that the services offered at the disputed domain name are based on a pyramid scheme.
With regard to the three elements specified in paragraph 4(a) of the Policy, the Complainant contends that each of the three conditions is given in the present case.
(i) The disputed domain name is confusingly similar to the CME Marks as it contains the CME Marks in their entirety and the generic term "trades", which refers to the Complainant's business, does not change the fact that the disputed domain name is confusingly similar to the CME Marks.
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name as it is not affiliated or connected with the Complainant in any way, as the Complainant has never licensed or authorized the Respondent to use the CME Marks or to register any domain name incorporating the CME Marks, and as the Respondent cannot show any facts, including facts based on paragraph 4(c) of the Policy, that establish any rights to or legitimate interests in the disputed domain name. In particular, the Respondent's use is not bona fide use under the Policy as it knowingly adopted the well-known CME Marks as a domain name, the Respondent is not commonly known by the disputed domain name, and the Respondent is not making any legitimate noncommercial or fair use of the disputed domain name without intent for commercial gain.
(iii) The disputed domain name was registered and is being used in bad faith. With regard to bad faith registration, the Complainant argues that the Respondent knew of the Complainant's rights in the CME Marks prior to registration of the disputed domain name because the Complainant registered the CME Marks in jurisdictions across the globe, including in the United Kingdom, where CMETrades Limited claims to be located, and as the Respondent uses the disputed domain name in connection with the provision of financial exchange trading services. With regard to bad faith use, the Complainant states that the Respondent is using the disputed domain name to perpetrate a fraud, illegitimate scheme or scam, that it is using the disputed domain name for commercial gain by intentionally creating a likelihood of confusion with the CME Marks as to the source, sponsorship, affiliation, or endorsement of the Respondent's services, and that the Respondent employed a privacy protection service in the registration of the disputed domain name.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, the Complainant must prove that each of the following three elements is present:
(i) the disputed domain name is identical or confusingly similar to the Complainant's trademark; 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 and is being used in bad faith.
A. Identical or Confusingly Similar
The disputed domain name fully incorporates the Complainant's CME Marks, adding "trades" (which refers to an activity associated with the Complainant's business) to this mark and is confusingly similar to such mark.
The Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Even though the Policy requires the complainant to prove that the respondent has no rights or legitimate interests in the disputed domain name, it is the consensus view among UDRP panelists that a complainant has to make only a prima facie case to fulfill the requirements of paragraph 4(a)(ii) of the Policy. As a result, once a prima facie case is made, the burden of coming forward with evidence of the respondent's rights or legitimate interests in the disputed domain name will then shift to the respondent.
The Complainant has substantiated that the Respondent has no rights or legitimate interests in the disputed domain name. The Panel finds that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name and that the burden of production has been shifted to the Respondent.
The Respondent did not deny these assertions in any way and therefore failed to come forward with any allegations or evidence demonstrating any rights or legitimate interests in the disputed domain name.
Based on the evidence before the Panel, the Panel cannot find any rights or legitimate interests of the Respondent either. In particular, the undisputed facts that the Complainant's trademarks predate the Respondent's potential activities at the disputed domain name by decades, that the Respondent offers financial services, competing with services rendered by the Complainant, and that, based on documentary evidence provided by the Complainant, the Respondent's business most likely is a scam, supports the conclusion that the Respondent cannot rely on bona fide use under the Policy.
Accordingly, the Panel finds that the Complainant has proven that the Respondent has no rights or legitimate interests in respect of the disputed domain name under paragraphs 4(a)(ii) and 4(c) of the Policy.
C. Registered and Used in Bad Faith
The Panel is satisfied that the Respondent registered the disputed domain name with full knowledge of the Complainant and its rights in the CME Marks for the following reasons: The Complainant is well known internationally and has been doing business in the financial sector for many decades, inter alia, in London, where it maintains an office and where, according to the information provided on the Respondent's website, the Respondent's CMETrades Limited company is located. Given the distinctiveness of the CME Marks with regard to the services in question, the high profile of the Complainant and its marks, and the fact that the Respondent is doing business in the very same industry, it is inconceivable that the Respondent registered the disputed domain name without knowledge of the Complainant's rights in the CME Marks.
As to bad faith use, as the disputed domain name is used in connection with a website offering competing and most likely fraudulent financial services, the Respondent was, in all likelihood, trying to divert traffic intended for the Complainant's website to its own for commercial gain as set out under paragraph 4(b)(iv) of the Policy. As the Respondent did not file a response, there is nothing on the record of the case file to show otherwise.
Consequently, the Panel finds that the Respondent registered and used the disputed domain name in bad faith and that the Complainant satisfied the requirements of 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 <cmetrades.com> be transferred to the Complainant.
Date: July 25, 2017