The Complainant is Iqoption Europe Limited, Cyprus, represented by Eagle & Gate Pty Ltd (Eaglegate Lawyers), Australia.
The Respondent’s name has been redacted for the reason explained in section 6A below. The Respondent is unrepresented.
The disputed domain name <iqoption.com.au> (“Domain Name”) is registered with GoDaddy.com, LLC.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 3, 2020. On March 3, 2020, the Center transmitted by email to GoDaddy.com, LLC a request for registrar verification in connection with the Domain Name. On March 3, 2020, GoDaddy.com, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On March 9, 2020, the Center received an email communication from the Complainant, and on March 15, 2020, the Center sent an email communication to the Parties.
On March 16, 2020, the Center received an email communication from a third party, being the director of the named Respondent, indicating that the named Respondent did not and had never owned the Domain Name and had no association with the name or email address used in the WhoIs registry for the Domain Name.
The Center verified that the Complaint satisfied the formal requirements of the .au Dispute Resolution Policy (the “Policy” or “.auDRP”), the Rules for .au Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for .au 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 March 25, 2020. In accordance with the Rules, paragraph 5(a), the due date for Response was April 14, 2020. The Respondent did not submit any response. On April 20, 2020, the Center notified the Parties that it would proceed to panel appointment.
The Center appointed Nicholas Smith as the sole panelist in this matter on April 30, 2020. 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 Complainant is a company incorporated in Cyprus that is the owner of an Australian trade mark registration for the word IQOPTION (the “IQOPTION Mark”). The IQOPTION Mark (trade mark no. 1838214) was registered on July 12, 2017 (with a priority date of June 15, 2016) for various financial and insurance services. The Complainant is also the owner of the domain name <iqoption.com>, which resolves to its website where it invites potential customers to utilise its trading platform for financial services products.
As provided in the Complaint, the Domain Name was last modified on September 20, 2019, and does not appear to have ever redirected to an active website. As noted in section 3 above, it appears that the named Respondent does not own and has no connection with the ownership of the Domain Name.
The Complainant makes the following contentions:
(i) that the Domain Name is identical or confusingly similar to the Complainant’s IQOPTION Mark;
(ii) that the Respondent has no rights nor any legitimate interests in respect of the Domain Name; and
(iii) that the Domain Name has been registered and is subsequently being used in bad faith.
The Complainant is the owner of the IQOPTION Mark, having registered this mark in Australia since 2017. The Domain Name is identical to the IQOPTION Mark.
There are no rights or legitimate interests held by the Respondent in respect of the Domain Name. The Respondent is not commonly known as the Domain Name, nor does it make any legitimate use of the Domain Name in any way, since the Domain Name resolves to a blank page.
The Complainant makes numerous contentions in its Complaint about the Domain Name being registered and being used in bad faith by the named Respondent. Given that the named Respondent does not appear to have any connection to the Domain Name, it is not necessary to summarise them in this decision.
The Respondent did not reply to the Complainant’s contentions.
As can be seen from the factual background set out above (section 3) this case appears to be a case where the company identified on the Registrar’s WhoIs database is an innocent party unaware of the fraud being perpetrated in its name. In such cases, it is common practice for the Respondent’s name to be redacted from the published decision. The Panel proposes to follow the course of action adopted by the learned panel in Elkjøp Nordic A/S v. Name Redacted, WIPO Case No. D2013-12851 , and set out as follows:
“As in Moncler S.r.l. v. Name Redacted, WIPO Case No. D2010-1677; Boehringer Ingelheim Pharma GmbH & Co. KG v. Name Redacted, WIPO Case No. D2012-0890 and Saudi Arabian Oil Company v. Name Redacted, WIPO Case No. D2013-0105, this is a case in which the Panel finds that the Domain Name was registered by a third-party without the involvement of the person identified in the WhoIs as the registrant of the Domain Name, against whom the Complaint was filed. The Panel has accordingly redacted the name of that person from the caption and body of this Decision. The Panel has attached as an Annexure to this Decision an instruction to the Registrar regarding transfer of the Domain Name that includes the name of that person so as to enable effect to be given to the Panel’s order. To this end, the Panel authorises the Center to transmit the Annexure to the Registrar and the parties, but further directs the Center and Registrar, pursuant to paragraph 4(j) of the Policy and paragraph 16(b) of the Rules, that the Annex to this Decision shall not be published in this exceptional case.”
All references in this decision to the Respondent (as opposed to the named Respondent) are to the unknown person who registered the Domain Name.
To prove this element, the Complainant must have a name, trade or service mark rights and the Domain Name must be identical or confusingly similar to the Complainant’s name, trade or service mark.
The Complainant is the owner of the IQOPTION Mark, having registrations for the IQOPTION Mark as a trade mark in Australia.
The Domain Name <iqoption.com.au> reproduces the IQOPTION Mark in its entirety and adds the country code Top-Level Domain (“ccTLD”) “.com.au”. Disregarding the ccTLD as a necessary element of the Domain Name System, the Panel finds that the Domain Name is identical to the IQOPTION Mark. Consequently, the requirement of paragraph 4(a)(i) of the Policy is satisfied.
To succeed on this element, a complainant must make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name. If such a prima facie case is made out, then the burden of production shifts to the respondent to demonstrate rights or legitimate interests in the domain name.
Paragraph 4(c) of the Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests in a domain name:
“Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, is to be taken to demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you of the subject matter of the dispute, your bona fide use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with an offering of goods or services (not being the offering of domain names that you have acquired for the purpose of selling, renting or otherwise transferring); or
(ii) you (as an individual, business, or other organisation) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the name, trademark or service mark at issue.”
The Respondent is not affiliated with the Complainant in any way. It has not been authorized by the Complainant to register or use the Domain Name or to seek the registration of any domain name incorporating the IQOPTION Mark or a mark similar to the IQOPTION Mark. There is no evidence that the Respondent is commonly known by the Domain Name or any similar name. There is no evidence that the Respondent has used or made demonstrable preparations to use the Domain Name in connection with a bona fide offering of goods or services or for a legitimate noncommercial use. Indeed, there is no evidence that the Domain Name has ever been used.
The Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name. The Respondent has had an opportunity to rebut the prima facie case that it lacks rights or legitimate interests but has chosen not to do so. The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name under paragraph 4(a)(ii) of the Policy.
For the purposes of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the domain name registrations to another person, for valuable consideration in excess of its documented out-of-pocket costs directly related to the Domain Name; or
(ii) the Respondent has registered the Domain Name in order to prevent the owner of the name, trade mark or service mark from reflecting the name or mark in a corresponding domain name; or
(iii) the Respondent has registered the Domain Name primarily for the purpose of disrupting the business or activities of another person; or
(iv) by using the Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the Complainant’s name or mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on Respondent’s website or location; or
(v) if any of the Respondent’s representations or warranties as to eligibility or third party rights given on application or renewal are, or subsequently become, false or misleading in any manner.
The Panel notes that the Policy only requires that a complainant show that a respondent registered or subsequently used the disputed domain name in bad faith, however in the interest of completeness the Panel has considered both whether the Domain Name has been registered and used in bad faith. Furthermore, the Panel notes that the above examples are not exclusive and other circumstances may exist that demonstrate the registration and use of a domain name in bad faith.
The Panel finds, on the balance of probability, that the Domain Name was registered in bad faith. It is likely that the Respondent was aware of the Complainant and its reputation in the IQOPTION Mark at the time the Respondent registered the Domain Name. As the Domain Name is identical to the Complainant’s trade mark, save for the addition of “.com.au”, and identical to the Complainant’s <iqoption.com> domain name, save for the addition of “.au”; a simple Google search would have revealed the Complainant’s existence. Furthermore, the Respondent, in registering the Domain Name, acted to hide its identity through the use of false contact details, which implicated the named Respondent in this matter. There is no obvious reason, nor has the Respondent offered an explanation, for the Respondent to register a domain name wholly incorporating the IQOPTION Mark using false contact details unless there was an intention to create a likelihood of confusion between the Domain Name and the Complainant and its IQOPTION Mark.
The Domain Name is currently inactive. Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003, established that a UDRP panel must examine all the circumstances of the case to determine whether a respondent is acting in bad faith in circumstances where a domain name is unused.
The Panel is prepared to infer, based on the conduct of the Respondent, including the passive holding of the Domain Name, the use of clearly false and misleading contact details, and the failure by the Respondent to participate in this proceeding or otherwise provide any explanation of its conduct, that the Domain Name is most likely being held pending use in a manner that will take advantage of any confusion between the Domain Name and the IQOPTION Mark, be it for a commercial website, an offer to sell the Domain Name, or for phishing purposes. As such, the Panel finds that the passive holding of the Domain Name does not prevent a finding of use in bad faith.
Accordingly, the Panel finds that the Respondent has registered and is using the Domain Name in bad faith under paragraph 4(a)(iii) of the Policy.
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 <iqoption.com.au> be transferred to the Complainant.
Date: May 7, 2020
1 Noting the substantial substantive similarities between the Policy and the Uniform Domain Name Dispute Resolution Policy (“UDRP”), the Panel has referred to prior UDRP cases, where appropriate.