WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
FXCM Global Services, LLC v. Majdi Hassan
Case No. D2020-0504
1. The Parties
The Complainant is FXCM Global Services, LLC, United States of America (“United States”), represented by SafeNames Ltd., United Kingdom.
The Respondent is Majdi Hassan, Israel.
2. The Domain Names and Registrars
The disputed domain names <fxcm360.co> and <fxcm360.com> are registered with GoDaddy.com, LLC
3. Procedural History
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 the Registrar a request for registrar verification in connection with the disputed domain names. On March 3, 2020, 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 March 11, 2020. In accordance with the Rules, paragraph 5, the due date for Response was March 31, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 2, 2020.
The Center appointed José Ignacio San Martín Santamaría as the sole panelist in this matter on April 7, 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.
4. Factual Background
The Complainant, FXCM Global Services, LLC, is a London-based company founded in 1999, operating as a retail broker in the foreign exchange (“Forex”) market.
The Complainant is the proprietor of several trademark registrations consisting of or including the sign FXCM, inter alia:
- United States trademark registration No. 2620953 FXCM, registered on September 17, 2002, for services in class 36;
- European Union trademark registration No. 003955523 FXCM, registered on November 3, 2005, for services in classes 35, 36, and 41; and
- Australian trademark registration No. 1093998 FXCM, registered on June 13, 2006, for services in classes 36 and 41.
The disputed domain names were registered on September 7, 2018. According to the Complaint, the disputed domain names resolve to active for a websites offering financial services, but when trying to access the website the browser gives a security warning.
5. Parties’ Contentions
The Complainant’s arguments can be summarised as follows:
- The Complainant, FXCM Global Services, LLC, has a worldwide reputation in the area of financial services under the “FXCM” brand name. The Complainant’s “FXCM” is distinctive and well-known within the relevant industry, as recognized in previous UDRP decisions.
- The disputed domain names are confusingly similar to the Complainant’s FXCM trademark, since they clearly contain the Complainant’s FXCM trademark, with the addition of a generic term “360”.
- The Respondent lacks a right or a legitimate interest in the disputed domain names. The Respondent does not have any trademark rights to the term “fxcm”. There is also no evidence that the Respondent retains unregistered trademark rights to the term “fxcm”. Neither has the Respondent received any license from the Complainant to use domain names featuring the FXCM trademark.
- The Respondent is using the disputed domain names to purportedly offer similar services to that of the Complainant. Third-party websites specialising in Forex trading and scams have reported that the Respondent’s website is deceptive and used for the purposes of committing fraud. Consequently, the Respondent has not made a legitimate noncommercial or fair use of the disputed domain names.
- Given the reputation and renown the FXCM trademark has received in this industry, it is implausible that the Respondent was not aware of the Complainant’s trademarks. Previous UDRP decisions have found bad faith in similar circumstances.
- By specifically targeting the Complainant, in particular by using the term “fxcm”, the Respondent has demonstrated actual knowledge of the Complainant. The targeting shows that the Respondent attempts to use the goodwill and reputation of the FXCM mark to deceive online users at to the ownership and operation of the disputed domain names.
- The Respondent used the Complainant’s trademark in the disputed domain names and to attract traffic in hope of enticing customers to the advertised service offered, and thus attempted to commercially benefit off the Complainant’s FXCM mark.
As a consequence, the Complainant requests that the disputed domain names be transferred to the Complainant.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Pursuant to paragraph 4(a) of the Policy and 15 of the Rules, the Panel shall grant the remedies requested if the Complainant proves that:
(i) the disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain names; and
(iii) the disputed domain names have been registered and are being used in bad faith.
Pursuant to paragraph 4(a) of the Policy and 15 of the Rules, for this purpose the Panel shall decide a Complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.
A. Identical or Confusingly Similar
The Complainant has trademark rights in many countries for the FXCM trademark in relation to financial and other related services. Evidence of the well-known character of this trademark has been filed.
The disputed domain names wholly incorporate the Complainant’s trademark FXCM adding the number “360”, which does not prevent a finding of confusing similarity.
As stated in Crédit Industriel et Commercial v. Manager Builder, Builder Manager, WIPO Case No. D2018-2230:
“Numerous UDRP panels have recognized that incorporating a trademark in its entirety can be sufficient to establish that the disputed domain name is at least confusingly similar to a registered trademark (see e.g., PepsiCo, Inc. v. PEPSI, SRL (a/k/a P.E.P.S.I.) and EMS Computer Industry (a/k/a EMS), WIPO Case No. D2003-0696). Moreover, it has been held in many UDRP decisions and has become a consensus view among panelists (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (‘WIPO Overview 3.0’), section 1.8), that where the relevant trademark is recognizable within the disputed domain name, the addition of other terms would not prevent a finding of confusing similarity under the first element of the UDRP.”
The Panel also notes a UDRP decision dealing with an additional term “360” in Arkema France v. Domain Administrator, PrivacyGuardian.org / Geren Wenzhen Gu, WIPO Case No. D2019-0239:
“The disputed domain name only differs from the Complainant’s trademark with of the addition of the ‘360’ suffix which under this Panel’s view does not avoid a finding of confusing similarity between it and the Complainant’s trademark.”
The Panel therefore finds that the disputed domain names are confusingly similar to the Complainant’s trademarks as provided under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain names. Having done so, the burden of production shifts to the Respondent to come forward with appropriate evidence demonstrating rights or legitimate interests (see WIPO Overview 3.0 , section 2.1 ). Given that the Respondent has defaulted, it has not come forward with any evidence of rights or legitimate interests.
Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights to or legitimate interests in a disputed domain name by demonstrating any of the following:
(i) before any notice to it of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Respondent’s website can mislead the consumers into believing that they are accessing the Complainant’s website. Moreover, the Complainant has established that the website appears to be engaged in fraudulent fishing activities. Obviously, these circumstances do not correspond to a bona fide use and constitute an unrebutted prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain names.
In summary, the Panel finds that the paragraph 4(a)(ii) set forth in the Policy is present.
C. Registered and Used in Bad Faith
According to paragraph 4(b)(iv) of the Policy, registration or use of a domain name will be considered in bad faith when:
“by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or location.”
The Complainant’s FXCM trademark is well-known precisely in relation to financial services, well before the registration of the disputed domain names, as recognized in FXCM Global Services LLC v. WhoisGuard Protected, Whoisguard Inc. / Jenny Sohia, WIPO Case No. D2018-1111.
The Respondent’s registration of the disputed domain names wholly incorporating the Complainant’s trademark is, in the Panel’s view, indicative of bad faith, since the disputed domain names resolve to websites relating to the same activities as the Complainant’s website.
As mentioned in Andrey Ternovskiy dba Chatroulette v. Alexander Ochkin, WIPO Case No. D2017-0334:
“It is clear in the Panel’s view that in the mind of an Internet user, the disputed domain names could be directly associated with the Complainant’s trademark, which is likely to be confusing to the public as suggesting either an operation of the Complainant or one associated with or endorsed by it (see AT&T Corp. v. Amjad Kausar, WIPO Case No. D2003-0327).”
Furthermore, as mentioned above the Respondent’s website appears to be engaged in fraudulent fishing activities. Obviously, these circumstances correspond to a bad faith use (see WIPO Overview 3.0, sections 3.1.4 and 3.4).
The Panel finds that the disputed domain names were registered and are being used in bad faith by the Respondent for the purposes of the Policy. In the light of the above, the Panel finds that the Complainant has established registration and use of the disputed domain names in bad faith and concludes that paragraph 4(a)(iii) of the Policy is satisfied.
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, <fxcm360.co> and <fxcm360.com>, be transferred to the Complainant.
José Ignacio San Martín Santamaría
Date: April 21, 2020