The Complainant is FXOpen Investments Inc. of Limassol, Cyprus, represented by Delta Quest Group, Cyprus.
The Respondent is FXopen Asia of Florida, Hong Kong, SAR of China.
The disputed domain name <fxopen.me> is registered with GoDaddy.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 30, 2009. On January 4, 2010, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On January 5, 2010, GoDaddy.com, Inc. 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on January 8, 2010. The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy approved by the doMEn d.o.o (“doMEn”) (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy approved by the doMEn d.o.o (“doMEn”) (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 11, 2010. In accordance with paragraph 5(a) of the Rules, the due date for Response was January 31, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on February 1, 2010.
The Center appointed Brigitte Joppich as the sole panelist in this matter on February 4, 2010. 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.
On February 4, 2010, the Panel issued Procedural Order No. 1 to the parties, requesting the Complainant, within five days as of the date of the Order, to provide evidence that it owns trademark rights in the mark FXOPEN under paragraph 4(a)(i) of the Policy, noting also that the mere claim in a trademark application is not sufficient in this regard. The Complainant filed a reply to Procedural Order No. 1 on February 8, 2010.
The Complainant FXOpen Investments Inc. is a company incorporated under the Laws of the Republic of Mauritius. In reply to Procedural Order No. 1, the Complainant established that it owns three trademark applications for FXOPEN (in international classes 35, 36, and 41), filed with and duly received by the Company Registrar of the Republic of Cyprus on October 12, 2009. However, the Complainant did not claim any registered trademark rights. Instead, it referred the Panel to its Certificate of Incorporation and a “Category 1 Global Business License”, both issued by the Republic of Mauritius.
The disputed domain name was first created on November 17, 2009.
The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy is given in the present case:
(1) The disputed domain name is confusingly similar to the Complainant's trademark applications FXOPEN and the Complainant's domain name <fxopen.com>.
(2) The Respondent has no rights to or legitimate interests in the disputed domain name.
(3) The domain name was registered and is being used in bad faith through online piracy, plagiarism and/or copyright infringement of the Complainant's authentic and genuine domain name.
The Respondent did not reply to the Complainant's contentions.
In order to satisfy the first element of paragraph 4(a) of the Policy, the Complainant must prove that the domain name is identical or confusingly similar to the Complainant's trademark. The Complainant does not own registered trademark rights.
It is the consensus view that, in order to successfully assert common-law or unregistered trademark rights, a complainant must show that its alleged mark has become a distinctive identifier associated with the complainant or its goods and services. Relevant evidence of such “secondary meaning” may include length and amount of sales under the mark, the nature and extent of advertising, consumer surveys and media recognition. (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions). In the present case, no claim of secondary meaning of the company name FXOPEN has been made by the Complainant and no evidence whatsoever in support of such claim has been presented to the Panel. The Panel therefore cannot but find that the Complainant has failed to establish the first element of the Policy.
As a result, it is not necessary to make a finding with regard to the second and third elements of the Policy.
For all the foregoing reasons, the Complaint is denied.
Brigitte Joppich
Sole Panelist
Dated: February 15, 2010