WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Swissquote Group Holding SA v. Domain Administrator, See PrivacyGuardian.org / xu shuaiwei
Case No. D2019-0042
1. The Parties
The Complainant is Swissquote Group Holding SA of Gland, Switzerland, represented by Inlex IP Expertise, France.
The Respondent is Domain Administrator, See PrivacyGuardian.org of Phoenix, Arizona, United States of America (“United States”) / xu shuaiwei of Kunming, China.
2. The Domain Names and Registrar
The disputed domain names <swissqote.com> and <swssquote.com> are registered with NameSilo, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 8, 2019. On January 8, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On January 9, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on January 10, 2019, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on January 11, 2019.
The Center verified that the Complaint together with the amended 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 January 16, 2019. In accordance with the Rules, paragraph 5, the due date for Response was February 5, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 6, 2019.
The Center appointed Rachel Tan as the sole panelist in this matter on February 12, 2019. 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
Headquartered in Switzerland, the Complainant is a provider of online financial and trading services. The Complainant owns trade mark registrations consisting of or containing the term SWISSQUOTE, including International Registration No. 742603, SWISSQUOTE and Logo, registered on August 31, 2000, designating Germany, Spain, France, Italy and the European Union, and International Registration No. 1132411, SWISSQUOTE, registered on August 20, 2012, designating the European Union.
The two registrations cover advertising and financial services in classes 35 and 36 respectively, and telematics services in class 38 are additionally claimed in the latter registration. The Complainant owns several domain names including <swissquote.com>, registered on February 14, 1997.
The disputed domain names were registered on November 24, 2017 by the Respondent, “xu shuaiwei”, apparently a Chinese individual. The initial Respondent was a WhoIs privacy service that has now been deleted from the amended Complaint. The disputed domain names currently resolve to a website which is under construction. The disputed domain names previously redirected Internet users to the website “www.icmarkets.com”, an online forex broker offering financial services.
5. Parties’ Contentions
The Complainant contends that the disputed domain names are confusingly similar to its prior SWISSQUOTE trade mark and domain name. The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain names. The Respondent has not been authorized by the Complainant to use the names “swissqote” or “swssquote” or register the disputed domain names. No business relationship exists between the parties and the disputed domain names are not used in connection with a bona fide offering of good or services. The Complainant further contends that the disputed domain names were registered and are being used in bad faith. The Respondent registered and is using the disputed domain names to divert customers to its websites to obtain financial benefits.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
On the basis of the facts and evidence introduced by the Complainant, and with regard to paragraphs 4(a), (b) and (c) of the Policy, the Panel concludes as follows:
A. Identical or Confusingly Similar
The Panel finds that the Complainant has submitted sufficient evidence to demonstrate its registered rights in trade marks consisting of or containing the term SWISSQUOTE.
The disputed domain name <swissqote.com> is virtually identical to the Complainant’s SWISSQUOTE trade mark but for the omission of the letter “u”. Similarly, the disputed domain name <swssquote.com> is missing the letter “i”. These common misspellings of the Complainant’s SWISSQUOTE trade mark are derived from the kind of typing errors easily made by Internet users. “This is clearly a ‘typosquatting’ case where the disputed domain name is a slight misspelling of a registered trademark to divert Internet traffic”. See Edmunds.com, Inc. v. Digi Real Estate Foundation, WIPO Case No. D2006-1043, <edmundss.com>.
The addition of “.com”, a generic Top-Level Domain (“gTLD”), is a technical requirement of every domain name registration that can be disregarded.
Therefore, the Panel finds that the disputed domain names are confusingly similar to the Complainant’s SWISSQUOTE trade mark. Accordingly, the Complainant has satisfied the first element under paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
In circumstances where the Complainant possesses exclusive rights to the SWISSQUOTE trade mark whereas the Respondent seems to have no trade mark rights, the Panel is satisfied that the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain names, and the burden of production shifts to the Respondent. See International Hospitality Management - IHM S.p.A. v. Enrico Callegari Ecostudio, WIPO Case No. D2002-0683.
The disputed domain names resolve to websites which are “under construction” and which contain a disclaimer that the domain is currently for “non-commercial and private & personal domain, the domain itself and its owner is not connected or affiliated with any company, organization or trademark”.
Paragraph 3.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) provides:
“In cases where the respondent appears to otherwise have a right or legitimate interest in a disputed domain name, a clear and sufficiently prominent disclaimer would lend support to circumstances suggesting its good faith. For example, where a respondent is legitimately providing goods or services related to the complainant’s mark only (see Oki Data and its progeny discussed at 2.8), the presence of a clear and sufficiently prominent disclaimer can support a finding that the respondent has undertaken reasonable steps to avoid unfairly passing itself off as related to the complainant, or to otherwise confuse users.
On the other hand, where the overall circumstances of a case point to the respondent’s bad faith, the mere existence of a disclaimer cannot cure such bad faith. In such cases, panels may consider the respondent’s use of a disclaimer as an admission by the respondent that users may be confused.”
In the present case, the Respondent however has not provided evidence of circumstances of the type specified in paragraph 4(c) of the Policy, nor of any other circumstances giving rise to rights or legitimate interests in the disputed domain names. Thus, the disclaimer in itself is insufficient evidence that the Respondent has any demonstrable plans to offer goods or services in good faith under the disputed domain names, or to support a recognition of a legitimate claim to the disputed domain names.
The Panel thus concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain names.
C. Registered and Used in Bad Faith
The Complainant’s SWISSQUOTE trade mark has been registered and used in a sizable number of countries. The disputed domain names were registered well after the first registration of the Complainant’s SWISSQUOTE trade mark and <swissquote.com> domain name.
The Respondent, “xu shuaiwei”, is apparently a Chinese individual residing in China. The terms “swissqote” or “swssquote” have no meaning in the Chinese language or other apparent meaning and are obvious misspellings of the Complainant’s SWISSQUOTE trade mark. The disputed domain names previously redirected to the website “www.icmarkets.com”, an online Electronic Communications Networks (ECN) broker firm offering forex trading in several languages. The nature of the services offered on this website indicates that the Respondent had full knowledge of the Complainant’s trade mark and services. By deliberately registering two domain names which are confusingly similar to the Complainant’s trade mark, the Respondent was using the disputed domain names to attracts Internet users who had wrongly typed the Complainant’s domain name to the website of a competitor. The Panel is satisfied that the Respondent has “intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the respondent’s website or location.” See paragraph 4(b)(iv) of the Policy.
Another pertinent consideration is that the Respondent appears to be engaged in a pattern of abusive registrations directed at the Complainant having previously registered the domain name <swissquot.com> which was the subject of Swissquote Group Holding S.A. v. xushuaiwei, WIPO Case No. D2016-0727. A check on the WhoIs history of <swissquot.com> revealed that the previous registrant’s email address and cell phone number are the same as those of the disputed domain names. The parties and facts of that case mirror those of the present case. The Panel in that case held that <swissquot.com> was registered and was being used by the previous registrant (the very same Respondent in the present case) in bad faith, and ordered it be transferred to the complainant (the Complainant in the present case).
The disputed domain names currently redirect to a website “under construction” with a disclaimer in English and Chinese. The change of use does not alter the Panel’s finding of bad faith use, but in fact reinforces the view that the Respondent is trying to prevent the Complainant from “reflecting the mark in a corresponding domain name” or “for the purpose of disrupting the business of” the Complainant. See paragraph 4(b)(ii) and (iii) of the Policy.
Based on the above facts, it is implausible to contemplate of any good faith use to which the disputed domain names may be put by the Respondent.
Taking into account all the circumstances of the case, the Panel finds that the Respondent must have known of the Complainant before registering the disputed domain names, and by taking into account the past re-direction as well as the current acts of the Respondent, the Panel is led to conclude that the disputed domain names were registered and are being used in bad faith.
Accordingly, the Panel concludes that the Complainant has satisfied the third element under paragraph 4(a) 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 <swissqote.com> and <swssquote.com> be transferred to the Complainant.
Date: February 25, 2019