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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

ActivTrades Plc. v. Peter Smith

Case No. D2017-2086

1. The Parties

The Complainant is ActivTrades Plc. of London, United Kingdom of Great Britain and Northern Ireland ("United Kingdom"), represented by Hiddleston Trade Marks, United Kingdom.

The Respondent is Peter Smith of Douglas, Isle of Man, United Kingdom.

2. The Domain Name and Registrar

The disputed domain name <activtrdaes.com> (the "Disputed Domain Name") 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 October 25, 2017. On October 26, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On October 26, 2017, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 13, 2017. In accordance with the Rules, paragraph 5, the due date for Response was December 3, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 4, 2017.

The Center appointed Nick J. Gardner as the sole panelist in this matter on December 7, 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 the Rules, paragraph 7.

4. Factual Background

The Complainant operates an online trading platform for customers to sell and purchase shares, stocks and other securities on financial markets. It had revenues in excess of GBP 30 million in 2016.

The Complainant is the proprietor of several trademarks for the word ACTIVTRADES including for example European Union Trade Mark No. 004411815 in Classes 16, 35, 36, 38 and 42, which was registered on May 18, 2006.

The Complainant is the registrant of the domain name <activtrades.com> which was registered on April 29, 2001 and various other country specific domain names, all of which resolve to the Complainant's main website at "www.activetrades.com".

The Respondent is the proprietor of the Disputed Domain Name <activtrdaes.com> which was registered on February 21, 2017.

That domain name resolves to a website at "www.marketsworld.com" (the "Respondent's Website"), which is, or purports to be, a gambling website licensed by the Gambling Supervision Commission on the Isle of Man operated by a company called Marketstheworld Limited.

5. Parties' Contentions

A. Complainant

The Complainant says that the Disputed Domain Name is confusingly similar to its ACTIVTRADES trademark being an obvious misspelling of the name with no other meaning.

The Complainant says that the Respondent has no rights or legitimate interests in the term "Activetrades". It says that term in conjoined form has no other meaning other than in relation to itself and its services.

The Complainant says that the Respondent's registration and use of the Disputed Domain Name are in bad faith as it was registered primarily for the purpose of disrupting the business of a competitor, namely the Complainant; and by using the Disputed Domain Name the Respondent is intentionally attempting to attract for commercial gain, Internet users to the Respondent's website or other online location, by creating a likelihood of confusion with the Complainant's Marks as the source of the Respondent's website. It says the Respondent's Website offers betting on binary option share trades, which is a bet on the price of a share and in effect competes with the services it offers.

It also says the Respondent has a long history of registering domain names in bad faith and cites a number of previous UDRP decisions in this regard (see below).

B. Respondent

No Response has been filed.

6. Discussion and Findings

The Panel notes that no communication has been received from the Respondent. However given the Complaint and Written Notice were sent to the relevant addresses disclosed by the Registrar then the Panel considers that this satisfies the requirement in paragraph 2(a) of the UDRP Rules to "employ reasonably available means calculated to achieve actual notice". Accordingly, the Panel considers it is able to proceed to determine this Complaint and to draw inferences from the Respondent's failure to file any Response. While the Respondent's failure to file a Response does not automatically result in a decision in favor of the Complainant, the Panel may draw appropriate inferences from the Respondent's default (see, e.g., Verner Panton Design v. Fontana di Luce Corp, WIPO Case No. D2012-1909).

To succeed, in accordance with paragraph 4(a) of the Policy, the Complainant must satisfy the Panel in that:

(i) The Disputed Domain Name is identical with 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;

(iii) The Disputed Domain Name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The Panel considers the Disputed Domain Name to be confusingly similar to the Complainant's trademark ACTIVETRADES. It is manifestly an obvious misspelling of the word likely to be entered in error whilst typing.

Accordingly the Panel finds that the Disputed Domain Name is confusingly similar to the Complainant's trademark and hence the first condition of paragraph 4(a) of the Policy has been fulfilled.

It is also well established that the generic Top-Level Domain ("gTLD"), in this case ".com", does not affect the Disputed Domain Name for the purpose of determining whether it is identical or confusingly similar. See, for example, Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429.

Accordingly the Panel finds that the Disputed Domain Name is confusingly similar to the Complainant's trademark and hence the first condition of paragraph 4(a) of the Policy has been fulfilled.

B. Rights or Legitimate Interests

The Panel finds "Activtrades" as a single word is, on the evidence before the Panel, a term with no other commercial meaning save in relation to the Complainant.

Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a domain name:

(i) before any notice to the respondent of the dispute, 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) the respondent has been commonly known by the domain name, even if the respondent has acquired no trade mark or service mark rights; or

(iii) the respondent is making a legitimate non-commercial 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.

None of these apply in the present circumstances. The Complainant has not authorised, licensed, or permitted the Respondent to register or use the Disputed Domain Name or to use the ACTIVETRADES trademark. The Complainant has prior rights in the ACTIVETRADES trademark which precede the Respondent's registration of the Disputed Domain Name. The Complainant has therefore established a prima facie case that the Respondent does not have any rights or legitimate interests in the Disputed Domain Name and thereby the burden of production shifts to the Respondent to produce evidence demonstrating rights or legitimate interests in respect of the Disputed Domain Name (see, for example, Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455).

The Panel finds that the Respondent has failed to produce any evidence to establish its rights or legitimate interests in the Disputed Domain Name. Accordingly the Panel finds the Respondent has no rights or any legitimate interests in the Disputed Domain Name and the second condition of paragraph 4(a) of the Policy has been fulfilled.

C. Registered and Used in Bad Faith

In the present circumstances, the distinctive nature of the ACTIVETRADES trademark, and the evidence as to the extent of the reputation the Complainant enjoys in the ACTIVETRADES trademark, and the fact that the Disputed Domain Name is an obvious misspelling of the ACTIVETRADES trademark, and the lack of any explanation from the Respondent as to why it registered the Disputed Domain Name lead the Panel to conclude the registration and use were in bad faith.

The Panel concludes that the Respondent is deliberately seeking to attract Internet users who mistype the Complainant's name to a website which offers services (betting on share prices) which to some extent compete with those services offered by the Complainant. This amounts to behaviour within paragraph 4(b)(iv) of the Policy ("by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site 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").

The Panel also agrees with the Complainant that the Respondent has a clear history of registering domain names in bad faith, which further supports the Complainant's case. See, for example, Vivid Seats LLC v. Peter Smith / Domain Administrator, Domains By Proxy LLC, WIPO Case No. D2016-1784; Taylor Wessing LLP v. Peter Smith, WIPO Case No. D2015-0701; Fladgate LLP, v. Domains By Proxy LLC / Peter Smith, WIPO Case No. D2015-1586; Bond Dickinson LLP v. Domains By Proxy LLC / Peter Smith, WIPO Case No. D2015-1911; Vivid Seats Limited v. Domain Administrator, Domains By Proxy LLC / Peter Smith, WIPO Case No. D2016-1125; Mills and Reeve LLP v. Peter Smith, WIPO Case No. D2015-1994; Bank of America Corporation v. Domains By Proxy LLC / Peter Smith, WIPO Case No. D2016-1223.

Further the Panel notes that the Respondent has not filed a Response and hence has not availed itself of the opportunity to present any case of good faith that it might have. The Panel infers that none exists.

As a result the Panel finds that the Disputed Domain Name has been registered and is being used in bad faith. Accordingly the third condition of paragraph 4(a) of the Policy has been fulfilled.

8. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <activtrdaes.com> be transferred to the Complainant.

Nick J. Gardner
Sole Panelist
Date: December 21, 2017

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