WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Admiral Markets Group AS v. Domain Admin, Whois Privacy Corp.
Case No. D2020-0779
1. The Parties
The Complainant is Admiral Markets Group AS, Estonia, represented by Sergei Bogatenkov, Estonia.
The Respondent is Domain Admin Whois Privacy Corp., Bahamas.
2. The Domain Name and Registrar
The disputed domain name <admiralmarkets-obman.com> is registered with Internet Domain Service BS Corp (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 1, 2020. On April7, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 8, 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 April 15, 2020. In accordance with the Rules, paragraph 5, the due date for Response was May 5, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 6, 2020.
The Center appointed Taras Kyslyy as the sole panelist in this matter on June 2, 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 is established in Estonia and provides financial services. The Complainant owns ADMIRAL MARKETS and device trademark registrations as follows:
- International Trademark No.1177229, is registered on July 11, 2013;
- European Union Trademark registration No.011680824, is registered on September 21, 2013.
In the course of its business activity the Complainant uses its domain name “admiralmarkets.com”. The Complainant also holds domain names as follows: ”admiralmarkets.com”; “admiralmarkets.ee”, “admiralmarketsglobal.com”; “admiralmarkets.eu”; “admiralmarkets.fr”; “admiralmarkets.lt”; “admiralmarkets.de”.
The disputed domain name was registered on January 24, 2018 and resolves to a website containing pages expressing criticism about the Complainant.
5. Parties’ Contentions
The disputed domain name is identical or confusingly similar to the Complainant’s trademark. The disputed domain name includes the Complainant’s trademark in its entirety. Addition of the word “obman” (fraud in Russian) in the disputed domain name does not avoid the confusing similarity.
The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is not commonly known by the disputed domain name nor has acquired any relevant trademark rights in relation to the disputed domain name and respective webpage. Neither the Complainant nor its affiliates have any license or other agreements with the Respondent in regards to the use of the Complainant’s trademark nor have they ever held any respective negotiations. The purpose of the website at the disputed domain name is to gain the trust of unsuspecting clients and mislead the public into thinking that the Complainant is offering illegal products and services. The activity of the Respondent is bringing down the reputation of the Complainant, therefore, no fair use of the disputed domain name can be found.
The disputed domain name was registered and is being used in bad faith. The website at the disputed domain name contains different untrue statements about the Complainant’ business activity. This proves that the aim of the website at the disputed domain name is to gain the trust of unsuspecting clients and mislead the public into thinking that the Complainant is offering illegal products and services and to bring down the reputation of the Complainant.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in its registered trademark.
According to section 1.11.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (the “WIPO Overview 3.0”) the applicable generic Top-Level Domain (“gTLD”) in a domain name (e.g., “.com”, “.club”, “.nyc”) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test. Thus, the Panel disregards gTLD “.com” for the purposes of the confusing similarity test.
According to section 1.7 of the WIPO Overview 3.0 in cases where a domain name incorporates the entirety of a trademark the domain name will normally be considered identical or confusingly similar to that mark for purposes of UDRP standing. The Panel finds that in the present case the disputed domain name incorporates the Complainant’s trademark in its entirety.
According to section 1.13 of the WIPO Overview 3.0 , a domain name consisting of a trademark and a negative or pejorative term (such as <[trademark]sucks.com>, <[trademark]구려.com>, <[trademark]吸.com>, or even <trademark.sucks>) is considered confusingly similar to the complainant’s trademark for the purpose of satisfying standing under the first element. The merits of such cases, in particular as to any potential fair use, are typically decided under the second and third elements. The Panel finds that addition of the negative term “obman” (fraud in Russian) to the disputed domain name does not preclude finding confusing similarity with the Complainant’s trademark.
Considering the above the Panel finds the disputed domain name is confusingly similar to the Complainant’s trademark, therefore, the Complainant has established its case under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Complainant has established prima facie that the Respondent has no rights or legitimate interests in the disputed domain name.
Furthermore, the Respondent provided no evidence that it holds a right or legitimate interest in the disputed domain name.
The Respondent is not commonly known by the disputed domain name, which could demonstrate its right or legitimate interest (see, e.g., World Natural Bodybuilding Federation, Inc. v. Daniel Jones TheDotCafe, WIPO Case No. D2008-0642).
The Complainant did not license or otherwise agree for use of its prior registered trademarks by the Respondent, thus no actual or contemplated bona fide or legitimate use of the disputed domain name could be reasonably claimed (see, e.g., Sportswear Company S.P.A. v. Tang Hong, WIPOCase No. D2014-1875).
According to section 2.6.1 of the WIPO Overview 3.0 to support fair use under UDRP paragraph 4(c)(iii), the respondent’s criticism must be genuine and noncommercial; in a number of UDRP decisions where a respondent argues that its domain name is being used for free speech purposes the panel has found this to be primarily a pretext for cybersquatting, commercial activity, or tarnishment. In the present case the Respondent’s website at the disputed domain name contains serious allegations of fraud against the Complainant, but the Respondent has not submitted a Response in this proceeding, has not provided a plausible explanation of its actions and has not denied the Complainant’s statements that the allegations on the Respondent’s website are false (and in effect pretextual), which the Panel would have expected, which means that the Complainant’s case has not been rebutted.
In addition, as the Panel will discuss further under the third element, there are circumstances in this case that would lead the Panel to find that the website at the disputed domain name has been created primarily for a commercial purpose.
Considering the above, the Panel finds the Complainant has established its case under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
According to section 3.2.2 of the WIPO Overview 3.0, factors including the nature of the domain name, the chosen top level domain, any use of the domain name, or any respondent pattern, may obviate a respondent’s claim not to have been aware of the complainant’s trademark. In the present case, the Panel finds that the use of the disputed domain name to place negative information about the Complainant clearly confirms the Respondent knew of the Complainant’s trademark while registering the disputed domain name, which confirms the bad faith.
UDRP paragraph 4(b)(iii) provides that the following non-exclusive scenario constitutes evidence of the respondent’s bad faith: the respondent has registered the domain name primarily for the purpose of disrupting the business of the competitor. According to section 3.1.3 of the WIPO Overview 3.0, UDRP panels have applied the notion of a “competitor” beyond the concept of an ordinary commercial or business competitor to also include the concept of “a person who acts in opposition to another” for some means of commercial gain, direct or otherwise. In the present case, the Panel finds that content of the website at the disputed domain name providing negative information about the Complainant left without any substantiation by the Respondent in the current proceeding and claimed to not be fair use (i.e., effectively pretextual) by the Complainant, confirms that the disputed domain name was registered and is being used primarily to disrupt business of the Complainant, which evidences bad faith.
The Panel furthermore notes that a banner on the website at the disputed domain name reads:
“Вопросы возврата Ваших денег от брокера-мошенника пишите на данную почту: email@example.com НЕОБХОДИМ ЮРИСТ для ЧарджБека, пишите сюда: firstname.lastname@example.org”
In English, this reads as:
“Questions regarding the return of your money from a fraud broker, write to this mail: email@example.com A LAWYER IS REQUIRED for Chargeback, write here: firstname.lastname@example.org”
The Panel notes that the claim that a lawyer is needed gives rise to a question whether this is a true criticism site, or whether the site is being used to further an attempt by the Respondent to profit off of complaints about the Complainant. (It would not be per se illegitimate for a service provider (e.g., a lawyer) to charge a fee to assist aggrieved consumers, but that position has not been advanced by the Respondent here.) The Panel also notes that the email addresses use a different domain name than the disputed domain name, indicating that the content may have been created for another purpose and simply placed on the website at the disputed domain name to give it the appearance of a genuine criticism site.
Finally, the Panel notes two other claimed criticism cases involving the Respondent (Systemgates Limited v. Domain Admin, Whois Privacy Corp., WIPO Case No. D2020-0878, and Admiral Markets Group AS v. Domain Admin, Whois Privacy Corp., WIPO Case No. D2018-0055), the latter involving also the Complainant, and in the former, notes the following words of the panel in that case (footnotes omitted):
“Based on the evidence provided by the Complainant as well as on publicly available sources consulted by the Panel, including the Internet Archive, the Respondent’s website contained negative reviews of the Complainant and its services, which were substituted for glowing reviews, after the parties entered into a promotional agreement and the Complainant paid the Respondent. After the Complainant terminated its agreement with the Respondent, the Respondent’s website reinstated only negative reviews of the Complainant and its business; (2) the website at the Domain Name advertises the Respondent’s own services offering Internet users to return their money lost by the Complainant. Presumably, the Respondent derives financial gain from such services; (3) and the Respondent failed to file any response to the complaint and to rebut the Complainant’s allegations.”
In each of those two cases the layout of the website also bears considerable similarity to the website at the disputed domain name.
Considering the above the Panel finds the Complainant has established its case under paragraph 4(a)(iii) 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 name, <admiralmarkets-obman.com> be transferred to the Complainant.
Date: June 12, 2020