WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Anyoption Holdings Ltd and Ouroboros Derivatives Trading Ltd. v. Miklós Jancsó
Case No. D2016-2325
1. The Parties
The Complainants are Anyoption Holdings Ltd and Ouroboros Derivatives Trading Ltd. of Nicosia, Cyprus, represented by Taylor Wessing, Germany.
The Respondent is Miklós Jancsó of Nicosia, Cyprus.
2. The Domain Name and Registrar
The disputed domain name <anyoptiontrading.com> is registered with Name.com, Inc. (Name.com LLC) (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 15, 2016. On November 16, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 22, 2016, 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 24, 2016. In accordance with the Rules, paragraph 5, the due date for Response was December 14, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 15, 2016.
The Center appointed Christos A. Theodoulou as the sole panelist in this matter on December 21, 2016. 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 Complainants are Anyoption Holdings Ltd, a Company organized under the Laws of Cyprus and Ouroboros Derivatives Trading Ltd, also organized under the Laws of Cyprus. According to the uncontested allegations of the Complainants, Anyoption Holdings Ltd was founded in 2008 and is a leader in the binary options trading industry and one of the largest websites for binary options today.
The Complainant Ouroboros Derivatives Trading Ltd is the licensee of Anyoption Holdings Ltd and operates the binary option trading platform named "anyoption" under the domain name <anyoption.com> which was first launched in February 2009. The anyoption platform allows customers worldwide to trade and earn from the fluctuations in the financial markets. The Company is regulated by the Cyprus securities exchange Commission (CySEC). According to the uncontested allegations of the Complainants it has a community of traders from over 150 countries.
The Complainant Anyoption Holdings Ltd is the owner of the following three European Union ("EU") trademarks (EUTMs) that are registered at the EUIPO (European Union Intellectual Property Office) and claim protection for all the countries of the EU: (1) EUTM no. 008333767, ANYOPTION (word mark) registered on February 17, 2010 for the following goods and services: Class 9: Computer software for financial application, online electronic publications; Class 36: Financial affairs and monetary affairs; Class 38: Telecommunications services and data streaming services; Class 41: Information provided online from a computer database or from the Internet and the online down loadable electronic publications. (2) EUTM no. 008298457, ANYOPTION (figurative mark), registered on February 17, 2010, class 9: Computer software for financial applications, online electronic publications; Class 36: Financial affairs and monetary affairs; Class 38: Telecommunications services and data streaming services; Class 41: Publication of information provided online from a computer database or from the Internet, online non-downloadable electronics publications. (3) EUTM no. 008298697, ANYOPTION (figurative mark), registered on December 3, 2009, Class 9: Computer software for financial applications, online electronic publications; Class 36: Financial affairs and monetary affairs; Class 38: Telecommunications services and data streaming services; Class 41: Information provided online from a computer database or from the Internet and online down loadable electronic publications.
The Complainant Ouroboros Derivatives Trading Ltd is the licensee of Anyoption Holdings Ltd, as mentioned above and thus is entitled to use, protect and enforce the above named trademark rights.
Further, the Complainant Anyoption Holdings Ltd is the owner of domain name <anyoption.com> created in May 2002.
The disputed domain name <anyoptiontrading.com> was created on January 30, 2012.
5. Parties' Contentions
The Complainants contend that the disputed domain name is identical or confusingly similar to trademarks or service marks in which the Complainants have rights, that the Respondent has no rights or legitimate interests in the disputed domain name and that the Respondent registered and is using the disputed domain name in bad faith.
The Respondent did not reply to the Complainants' contentions.
6. Discussion and Findings
Before engaging in the threefold discussion of paragraph 4(a) of the Policy, the Panel will briefly address the procedural issue relating to the default of the Respondent. The implications of a default in this case are telling since the Complainants have the burden of proof, according to paragraph 4(a) of the Policy ("In the administrative proceeding, the complainant must prove that each of these three elements are present"). As such, the Panel can not merely grant the Complainants' request automatically due to the default, but it has to examine instead the evidence presented to determine whether or not the Complainants have proved their case, as required by the Policy. See FNAC v. Gauthier Raymond, WIPO Case No. D2004-0881; Sonofon A/S v. Vladimir Aleksic, WIPO Case No. D2007-0668; Gaudi Trade SpA v. Transure Enterprise Ltd, WIPO Case No. D2009-1028.
The Panel notes that the Complainants have a specific common grievance against the Respondent for the disputed domain name and both of the Complainants' individual rights are affected as the trademark owner and a licensee of that trademark. The Panel finds that it would be equitable and procedurally efficient to permit consolidation.
The Panel shall now proceed to the analysis of the evidence in this case, based on the three elements of paragraph 4(a) of the Policy.
A. Identical or Confusingly Similar
The Complainants have presented evidence to demonstrate that they own registered trademark rights in the mark ANYOPTION and that they have been actively using these trademarks.
The mere fact that the Respondent has registered the disputed domain name incorporating the Complainants' mark with the generic word "trading", does not to this Panel affect the essence of the matter: the disputed domain name is identical or confusingly similar to the trademark of the Complainants and, in the circumstances of this case, is by itself sufficient to establish the criterion of identity or confusing similarity for purposes of the Policy, as many previous UDRP panels have found. See, e.g., Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903; Koninklijke Philips Electronics N.V. v. K. Harjani Electronics Ltd., WIPO Case No. D2002-1021; DFDS A/S v. NOLDC INC, WIPO Case No. D2006-1070; American Automobile Association, Inc. v. Bladimir Boyiko and Andrew Michailov, WIPO Case No. D2006-0252; Nationwide Mutual Insurance Company v. Whois Agent, Whois Privacy Protection Service, Inc./Zhichao Yang, WIPO Case No. D2015-1129, Facebook, Inc., V. on behalf of customers, WIPO Case No. D2016-0244.
In view of the above, the Panel finds that the Complainants have discharged their burden of proof on this point and holds that the disputed domain name <anyoptiontrading.com> is confusingly similar to the Complainants' trademark ANYOPTION.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a non-exhaustive list of circumstances which, if found by a panel to be proved based on its evaluation of the evidence presented, shall demonstrate a registrant's right to or legitimate interest in a domain name. These examples are discussed in turn below, with regard to the specific facts of this case.
(i) Use or demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services prior to the dispute: The Respondent is not making a bona fide offering of its goods.
(ii) An indication that the Respondent has been commonly known by the disputed domain name, even if it has acquired no trademark rights: In this case, there is no such indication from the present record.
(iii) Legitimate noncommercial or fair use of the disputed domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademarks at issue: Again, in this case there is no such indication from the record.
The Respondent does not seem to have any trademark registrations including the term "anyoption". Additionally, it is to be noted that the Respondent did not present evidence of any license by the Complainants, with whom there seems to exist no relationship whatsoever.
As a conclusion on this point, the Panel finds that the Complainants have established an uncontested, prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the Complainants have satisfied paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Complainants' argumentation on this point is mainly based on the circumstances mentioned in paragraph 4(b)(iv) of the Policy in order to demonstrate the Respondent's bad faith registration and use of the disputed domain name.
In reviewing the present case, it appears that the Respondent has registered the disputed domain name in bad faith.
The Panel finds it highly unlikely that the Respondent would register randomly and unintentionally a domain name that is identical or confusingly similar to the Complainants' ANYOPTON trademark. Rather, on a reasonable examination of the evidence, it seems to this Panel more likely that such registration and use would be motivated by a hoped-for capitalization, i.e., commercial gain from the Complainants' reputation.
Further, according to the uncontested allegations of the Complainants, the disputed domain name at the time of filing the Complaint was used to attract Internet users to the Respondent's site that frequently uses the word mark "anyoption" in its entirety and prominently uses the Complainants' figurative mark (EUTM no. 008298697) on the starting page of the website. Such use of the Complainants' trademark by the Respondent is evidence of bad faith.
The Panel also notes the default of the Respondent, which in the present circumstances "reinforces the inference of bad faith registration and bad faith use". The Hongkong and Shanghai Banking Corporation Limited v. Bill Lynn, WIPO Case No. D2001-0915.
As a consequence of the above, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith.
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 <anyoptiontrading.com> be transferred to the Complainant.
Christos A. Theodoulou
Date: December 27, 2016