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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

FXCM Global Services, LLC v. Arvie Santorino

Case No. D2019-1657

1. The Parties

The Complainant is FXCM Global Services, LLC, United States of America (“United States”) , represented by SafeNames Ltd., United Kingdom (“UK”).

The Respondent is Arvie Santorino, Romania.

2. The Domain Name and Registrar

The disputed domain name <fxcmgermany.com> is registered with NameCheap, Inc. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 15, 2019. On July 16, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 16, 2019, the Registrar 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. The Center sent an email communication to the Complainant on July 17, 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 July 18, 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 July 25, 2019. In accordance with the Rules, paragraph 5, the due date for Response was August 14, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 16, 2019.

The Center appointed Andrea Mondini as the sole panelist in this matter on August 22, 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

The Complainant was founded in 1999 and is a provider of online foreign exchange trading (“Forex”), contracts for difference trading (“CFD”), and related services. The Complainant operates on an international basis with offices, among others, in the UK, Germany, Australia, France, Hong Kong, China, and South Africa.

The Complainant owns a number of registered trademarks for marks comprising the “FXCM” acronym, including United States registration no. 2620953, filed on September 7, 2001, and registered on September 17, 2002, in class 36 and European Union trademark FXCM no. 003955523, filed on July 28, 2004, and registered on November 3, 2005, in classes 35, 36, and 41.

The disputed domain name was registered on March 7, 2019, and used to resolve to a website, which mimicked the Complainant’s website.

5. Parties’ Contentions

A. Complainant

The Complainant in essence contends the following:

The Complainant has a worldwide reputation in the Forex and CFD marketplaces. It predominantly operates from its main website “www.fxcm.com”. In addition, it also registered several domain names featuring the FXCM trademark which utilize various generic Top-Level Domain (“gTLD”) extensions and country code Top-Level Domains (“ccTLD’s”), such as <fxcm.asia>, <fxcm.co.uk>, etc.

The disputed domain name incorporates the “FXCM” element which is identical to the Complainant’s trademarks. The addition of the generic word “germany” does not dispel a confusing similarity.

The Respondent does not have any trademark rights to the term “fxcm” and has not been licensed by the Complainant to use its trademark. The Respondent is not commonly known by the disputed domain name and is not currently offering any goods or services from the disputed domain name. The Respondent therefore has no rights or legitimate interests in the disputed domain name.

When the disputed domain name is typed into a browser, a warning is shown stating “Deceptive site ahead […] Google Safe Browsing recently detected phishing on fxcmgermany.com”. The Complainant contends that this is due to the previous content hosted on the disputed domain name which mimicked the Complainant’s website in an attempt to lure Internet users to open an account and possibly submit money to the Respondent.

The apparently fraudulent use of the disputed domain name has been announced by the UK Financial Conduct Authority which described the operation as a “clone firm”, whereby “fraudsters are using the details of firms we authorize to try to convince people that they work for a genuine, authorized firm”.

The Respondent’s awareness of the Complainant’s brand is demonstrated by the fact that it chose to host content on the disputed domain name which was extremely similar to the Complainant’s website.

The fact that the Respondent specifically targeted the Complainant to attract Internet users in the hope of offering services that are likely fraudulent shows that the disputed domain name has been registered and used in bad faith in order to disrupt the business of a competitor.

The Complainant requests the transfer of the disputed domain name to the Complainant.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

According to paragraph 4(a) of the Policy, in order to succeed, a complainant must establish each of the following elements:

(i) the disputed domain name is identical or confusingly similar to the trademark or service mark in which the complainant has rights;

(ii) the respondent has no rights or legitimate interests in respect of the disputed domain name; and

(iii) the disputed domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The Complainant has shown that it holds several registrations for the trademark FXCM.

The Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark, because it incorporates in its entirety the trademark FXCM. The geographic suffix “germany” does not dispel confusing similarity between the disputed domain name and the Complainant’s trademark. See section 1.8 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).

Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Complainant contends, credibly, that the Respondent is not commonly known by the disputed domain name, that it has not been authorized by the Complainant to use the disputed domain name, and that there is no relationship whatsoever between the Parties. Moreover, the Complainant has provided evidence of suspected phishing and other fraudulent activities, which exclude any rights or legitimate interest on the Respondent. In the absence of any Response, the Panel concludes that the Respondent was not authorized or licensed to use the Complainant’ trademark in the disputed domain name and that there is no indication of any legitimate noncommercial or fair use of the disputed domain name.

Accordingly, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name.

Therefore, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

The fact that the Respondent registered a domain name compromised of the Complainant’s trademark FXCM with the geographic suffix “Germany” and specifically targeted the Complainant by mimicking the Complainant’s website, shows that when registering the disputed domain name the Respondent had actual knowledge of the Complainant’s brand and services. The Panel thus concludes that the Respondent that the disputed domain name was registered in bad faith.

The Complainant has shown that when the disputed domain name is typed into a browser, a warning is shown stating “Deceptive site ahead […] Google Safe Browsing recently detected phishing on fxcmgermany.com” and that also the UK Financial Conduct Authority issued a warning describing the Respondent’s operation as a “clone firm”, whereby “fraudsters are using the details of firms we authorize to try to convince people that they work for a genuine, authorized firm”. In the absence of any Response, the Panel concludes that that the disputed domain name has been used in bad faith in order to disrupt the business of a competitor.

The Panel therefore finds that the Complainant has satisfied the requirement under paragraph 4(a)(iii) of the Policy.

7. Decision

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 <fxcmgermany.com> be transferred to the Complainant.

Andrea Mondini
Sole Panelist
Date: August 26, 2019

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