WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ctrader Limited v. Niko Wibisono
Case No. D2013-1906
1. The Parties
Complainant is Ctrader Limited of Limassol, Cyprus, represented by Silverman Sherliker LLP, United Kingdom of Great Britain and Northern Ireland (the “UK”).
Respondent is Niko Wibisono of Jawa Timur, Indonesia.
2. The Domain Names and Registrar
The disputed domain names <ctraderafrica.com>, <ctraderamerica.com>, <ctraderasia.com>, <ctradereurope.com>, <ctraderindonesia.com> and <ctraderinternational.com> (the “Disputed Domain Names”) are registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
3. Procedural History
Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 8, 2013. On November 11, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Names. On November 12, 2013, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. On November 15, 2013, the Center sent Complainant an email communication informing Complainant that the Complaint was administratively deficient. On November 18, 2013, Complainant filed an amended Complaint. On November 28, 2013, due to further information received from the concerned Registrar on November 15, 20 and 27, 2013, the Center requested Complainant to amend another deficiency in its Complaint. On the same date, Complainant filed a second amended Complaint, curing the deficiencies.
The Center verified that the Complaint together with the amended Complaints 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 Respondent of the Complaint, and the proceedings commenced on December 2, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was December 22, 2013. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on December 30, 2013.
The Center appointed Douglas M. Isenberg as the sole panelist in this matter on January 9, 2014. 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
Complainant states, and provides evidence to support, that it is the owner of the following trademark registrations for CTRADER: UK Reg. Nos. 2,553,066 (filed July 15, 2010) and 2,586,453 (filed July 1, 2011); and Community Trademark Reg. No. 10,093,276 (filed July 1, 2011). Complainant states that these marks, which are referred to collectively hereafter as the “CTRADER Trademark,” are used in connection with “software and computer programs, financial services and software development services.” The description of goods and services listed in the relevant trademark registration certificates is consistent with this usage.
The Disputed Domain Names were registered on and between November 18, 2012, and January 23, 2013.
Complainant states that the Disputed Domain Names “are being used by Respondent as the platform for the hosting of websites […] that are direct copies of” Complainant’s website at “www.spotware.com”.
Complainant’s website includes the CTRADER Trademark and is used in connection with the goods and services identified in the relevant trademark registration certificates.
Complainant has provided a copy of a letter that its counsel sent to Respondent regarding the Disputed Domain Names on August 1, 2013. Complainant states that it did not receive a response to this letter.
5. Parties’ Contentions
Complainant contends, in relevant part, as follows:
- Each of the Disputed Domain Names is confusingly similar to the CTRADER Trademark because the CTRADER Trademark “forms the dominant and linking element” of each Disputed Domain Name and “[t]he addition of the name of a continent, country or a multitude of continents… does not provide any distinctiveness and is used only as an indication of geographical marketing intent.”
- Respondent has no rights or legitimate interests in the Disputed Domain Names because, inter alia, Complainant “has not granted the Respondent the right to use… the [CTRADER Trademark] or any similar mark as part of a domain name or otherwise by way of licence, authorisation or any other means”; there is “no indication that the Respondent owns any legitimate interests in the name”; and “the Respondent’s use of the [CTRADER Trademark] is a deliberate and intentional infringement.”
- The Disputed Domain Names were registered and are being used in bad faith because, inter alia, “[t]he actions of the Respondent are wholly without authorisation, approval or encouragement from [Complainant]”; by creating “exact copies” of Complainant’s website, Respondent has engaged in “fraud intended to damage the Complainant and its customers”; Respondent’s use of the Disputed Domain Names “constitutes intentional infringement of” the CTRADER Trademark; Respondent intends to divert customers from Complainant to Respondent by creating websites that are identical to Complainant’s website with a single exception: the use of “false addresses” on the websites; and the use of certain links on Respondent’s website will mislead customers into believing that “the association is authentic” between Respondent and Complainant.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Pursuant to the Policy, Complainant is required to prove the presence of each of the following three elements to obtain the relief it has requested: (i) each of the Disputed Domain Names is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) Respondent has no rights or legitimate interests in respect of the Disputed Domain Names; and (iii) each of the Disputed Domain Names has been registered and is being used in bad faith. Policy, paragraph 4(a).
A. Identical or Confusingly Similar
Based upon the trademark registrations cited by Complainant, it is apparent that Complainant has rights in and to the CTRADER Trademark.
As to whether the Disputed Domain Names are identical or confusingly similar to the CTRADER Trademark, the relevant comparison to be made is with the second-level portion of the domain name only (i.e., “ctraderafrica”, “ctraderamerica”, “ctraderasia”, “ctradereurope”, “ctraderindonesia” and “ctraderinternational”), as it is well-established that the generic Top-Level Domain (“gTLD”) (i.e., “.com”) should usually be disregarded for this purpose. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 1.2 (“The applicable top-level suffix in the domain name (e.g., ‘.com’) would usually be disregarded under the confusing similarity test (as it is a technical requirement of registration), except in certain cases where the applicable top-level suffix may itself form part of the relevant trademark.”).
Numerous previous decisions under the Policy have found that use of a complainant’s trademark in its entirety plus a geographic term in a domain name (especially where the complainant conducts business in the geographic region) creates a domain name that is confusingly similar to the relevant trademark. See, e.g., Six Continents Hotels, Inc., v. EnterSports Inc., WIPO Case No. D2008-1951 (“the combination of its trademark with the name of South Carolina, where Complainant owns or operates approximately 49 “Holiday Inn” and “Holiday Inn Express” hotels, would serve to add to such confusion rather than distinguish the mark and the domain name”).
Accordingly, the Panel finds that Complainant has proven the first element of the Policy.
B. Rights or Legitimate Interests
Complainant has argued that, inter alia, Complainant “has not granted the Respondent the right to use… the [CTRADER Trademark] or any similar mark as part of a domain name or otherwise by way of licence, authorisation or any other means”; there is “no indication that the Respondent owns any legitimate interests in the name”; and “the Respondent’s use of the [CTRADER Trademark] is a deliberate and intentional infringement.”
Under the Policy, “a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP.” WIPO Overview 2.0, paragraph 2.1.
Accordingly, as a result of Complainant’s allegations and without any evidence from Respondent to the contrary, the Panel is satisfied that Complainant has proven the second element of the Policy.
C. Registered and Used in Bad Faith
Whether a domain name is registered and used in bad faith for purposes of the Policy may be determined by evaluating four (non-exhaustive) factors set forth in the Policy: (i) circumstances indicating that the registrant has registered or the registrant has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the registrant’s documented out-of-pocket costs directly related to the domain name; or (ii) the registrant has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the registrant has engaged in a pattern of such conduct; or (iii) the registrant has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, the registrant has intentionally attempted to attract, for commercial gain, Internet users to the registrant’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the registrant’s website or location or of a product or service on the registrant’s website or location. Policy, paragraph 4(b).
Here, Complainant has not specifically alleged which, if any, of the foregoing factors exists. However, Complainant appears to argue that paragraph 4(b)(iv) of the Policy applies. Although Complainant has not cited any authority, numerous previous decisions under the Policy have found bad faith where a respondent created a website that is nearly identical to the complainant’s website. See, e.g., The Dow Chemical Company v. dowaychemical firstname.lastname@example.org +86.7508126859, WIPO Case No. D2008-1078 (finding bad faith where Complainant alleged that Respondent’s website “fraudulently impersonat[ed] the Complainant” because “[t]he Respondent was clearly specifically targeting the Complainant’s trademark and attempting to divert Internet users searching for the Complainant’s product to the Respondent’s website”).
Accordingly, the Panel finds that Complainant has proven the third element 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 Names <ctraderafrica.com>, <ctraderamerica.com>, <ctraderasia.com>, <ctradereurope.com>, <ctraderindonesia.com> and <ctraderinternational.com> be transferred to Complainant.
Douglas M. Isenberg
Date: January 23, 2014