WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
FXCM Global Services, LLC v. Chloe Goddard
Case No. D2020-2371
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 Chloe Goddard, United Kingdom.
2. The Domain Names and Registrar
The disputed domain names <fxcmuk.co> and <fxcmuk.net> are registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 11, 2020. On September 11, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On September 14, 2020, 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 September 14, 2020, 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 September 15, 2020.
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 September 16, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 6, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 9, 2020.
The Center appointed Anne-Virginie La Spada as the sole panelist in this matter on October 12, 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 a London-based company, founded in 1999, which operates as a retail broker in the foreign exchange market (“Forex”). The Complainant offers online solutions and is present through a network of international offices in various countries as well as on social media.
The Complainant provides its services under the FXCM trademark and operates predominantly from its website at “www.fxcm.com”.
The Complainant has registered several other domain names incorporating the FXCM trademark using various generic Top-Level Domain (“gTLD”) or country-code Top-Level Domain (“ccTLD”) extensions.
The Complainant is the owner of various registrations for the FXCM trademark, including:
- European Union trademark registration number 003955523, registered on November 3, 2005, in classes 35, 36, and 41;
- United States trademark registration number 2620953 registered on September 17, 2002, in class 36.
The Respondent registered the disputed domain names <fxcmuk.net> on December 18, 2018, and <fxcmuk.co> on June 8, 2019.
The disputed domain names resolve to websites offering services in the field of online foreign exchange trading.
The Complainant sent a cease and desist letter to the Respondent on August 13, 2020. The Respondent did not answer.
5. Parties’ Contentions
The Complainant contends that the disputed domain names are confusingly similar to its prior FXCM trademark as they reproduce it in full.
The Complainant contends that it has not licensed or otherwise permitted the Respondent to use the FXCM trademark or any variation thereof. The Complainant also contends that the Respondent is not commonly known by the disputed domain names.
The Complainant alleges that the Respondent was aware of the FXCM trademark before registering the disputed domain names. The Complainant further contends that the disputed domain names have been used to operate websites which create a likelihood of confusion with the Complainant’s mark and which contain a login portal aiming to collect personal and financial data from Internet users.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, a complainant must assert and prove each of the following:
(i) the domain name registered by the respondent is 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 domain name; and
(iii) the domain name registered by the respondent has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant owns various trademark registrations for the trademark FXCM.
The disputed domain names <fxcmuk.co> and <fxcmuk.net> reproduce the Complainant’s trademark in its entirety with no alteration and combine this trademark with “uk”, which may easily be recognized as a geographical descriptive term for the United Kingdom.
As a rule, UDPR panels consider that where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element of paragraph 4(a) of the Policy (see section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)).
In the present case, the trademark FXCM is recognizable in the disputed domain names. The mere addition of the geographical reference “uk” does not change the overall impression produced by the disputed domain names and does not prevent a finding of confusing similarity between the disputed domain names and the Complainant’s trademark.
UDRP panels also accept that a ccTLD or gTLD, such as “.co” or “.net”, should be disregarded when assessing whether a domain name is identical or confusing similar to a trademark (see section 1.11 of the WIPO Overview 3.0).
The Complainant has thus satisfied the condition set forth in paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Based on the information submitted by the Complainant, the Respondent does not appear to have rights or legitimate interests in respect of the disputed domain names, nor has the Complainant granted to the Respondent an authorization to use the disputed domain names. In addition, there is no evidence indicating that the Respondent is commonly known by the disputed domain names.
The disputed domain names have been used to operate the websites offering similar services to that of the Complainant under a similar logo. In addition, the Respondent offered on its websites a login portal allowing to input personal data and make financial deposits. Furthermore, the number under which the Respondent claims to be registered with the Financial Conduct Authority (“FCA”) in the United Kingdom corresponds in fact to a third company named ICM Capital Limited.
The Respondent does therefore not demonstrate legitimate noncommercial or fair use of the disputed domain names, without intent for commercial gain to misleadingly divert consumers or to tarnish the Complainant’s trademark or service mark.
Finally, the Respondent did not file a response to the Complaint. The Panel may draw from the lack of a Response the inferences that it considers appropriate, according to the Rules, paragraph 14(b). The Panel finds that the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain names, and that the Respondent’s silence corroborates such prima facie case.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain names, and that the Complainant has satisfied the condition set out in paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Given that the Complainant’s trademarks largely predate the registration of the disputed domain names and have acquired a reputation in relation to the provision of Forex and contract for difference (“CFD”) online trading, and given that the Respondent appears to be active and therefore to have knowledge of trading activities, the Panel accepts that the Respondent most likely knew of the Complainant’s trademark when it registered the disputed domain names.
UDRP panels have consistently found that the mere registration of a domain name that is identical or confusingly similar (particularly domain names comprising typos or incorporating the mark plus a descriptive term) to a famous or widely-known trademark by an unaffiliated entity can by itself create a presumption of bad faith (section 3.1.4 of the WIPO Overview 3.0).
The Respondent further created a likelihood of confusion with the Complainant’s mark as to the affiliation or endorsement of the Respondent’s websites and attempted to attract Internet users for commercial gain. This likelihood of confusion is inferred inter alia by the use of a similar logo, the reproduction on the Respondent’s websites of a text from the Complainant’s website, and the mention of inaccurate FCA details.
The failure of the Respondent to submit a response to the cease and desist letter sent by the Complainant reinforces the inference of bad faith.
Finally, it is likely that the websites corresponding to the disputed domain names have encouraged the communication by Internet users of their personal data and the deposit of funds so that there is a risk that the disputed domain names have been used for phishing purposes.
According to the above, the Panel finds that the disputed domain names were registered and are being used in bad faith, and that the Complainant has satisfied the condition set out in 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 names, <fxcmuk.co> and <fxcmuk.net>, be transferred to the Complainant.
Anne-Virginie La Spada
Date: October 24, 2020