WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
FXCM Global Services, LLC v. Domain Administrator, See PrivacyGuardian.org / Djapo Patrick, Cerisi
Case No. D2020-2561
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 Domain Administrator, See PrivacyGuardian.org, United States / Djapo Patrick, Cerisi, Cameroon.
2. The Domain Name and Registrar
The disputed domain name <fc-fxcm.com> is registered with NameSilo, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 2, 2020. On October 2, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 2, 2020, 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 October 6, 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 October 6, 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 October 21, 2020. In accordance with the Rules, paragraph 5, the due date for Response was November 10, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 24, 2020.
The Center appointed Andrew F. Christie as the sole panelist in this matter on November 29, 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, operating as a retail broker in the foreign exchange (“Forex”) market. It is a leading provider of online Forex trading, contract for differences (“CFD”) trading and related services. The Complainant provides global traders with trading tools, training, and educational courses. It has a number of international offices, including in Australia, France, Germany, South Africa, and Hong Kong, China.
The Complainant is the owner of several trademark registrations for the word trademark FXCM, including United States Registration No. 2620953 (registered on September 17, 2002), Australian Trademark No. 1093998 (filed on December 3, 2004, and registered on June 13, 2006), and European Union Trade Mark No. 003955523 (registered on November 3, 2005).
The Complainant predominantly operates from its main website at “www.fxcm.com”. The Complainant has registered several domain names incorporating its FXCM trademark, in various generic Top-Level Domains (“gTLDs”) and country code Top-Level Domains (“ccTLDs”), including <fxcm.asia>, <fxcm.capital>, and <fxcm.co.uk>.
The disputed domain name was registered on March 11, 2020. The Complainant has provided screenshots, taken on October 2, 2020, which show that the website resolving from the disputed domain name advertised services relating to Forex currency trading, redirected to various pages of the Complainant’s website, including to “www.fxcm.com/fr/forex-baskets”, and contained the Complainant’s logo in the top left-hand corner of each page.
The Complainant sent a cease and desist letter to the Respondent on August 13, 2020, to put the Respondent on notice of the Complainant’s trademarks and rights. It did not receive a reply.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is confusingly similar to a trademark in which it has rights because: (i) the disputed domain name clearly contains the Complainant’s FXCM trademark, with the addition of the letters “fc” and a hyphen; (ii) the mere addition of a generic word or letters to a trademark does not negate confusing similarity under this element; and (iii) the gTLD “.com” should be disregarded as it is a standard registration requirement.
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name because: (i) to the best of the Complainant’s knowledge, the Respondent does not have any trademark rights, including unregistered rights, to the term “fxcm”, and is not commonly known by the term “fxcm”; (ii) the Respondent has not received any license from the Complainant to use domain names featuring the FXCM trademark; (iii) all active trademark registrations for the term “fxcm” are held by the Complainant; (iv) the Respondent is using the disputed domain name to host a website that advertises services related to those offered by the Complainant, and which falsely insinuates that it is authorized by the Complainant by including a statement at the bottom of the page with the Complainant’s official details and by replicating the Complainant’s official logo; (v) the Respondent’s use of the disputed domain name is in a manner competitive to the Complainant, insofar as the content relates to the same sector, which is not a bona fide use of the disputed domain name; (vi) some links displayed on the website resolving from the disputed domain name redirect to the Complainant’s official website, heightening the confusion; (vii) the Respondent appears to offer advice and information on Forex trading, and is using the Complainant’s FXCM trademark and logo to insinuate to the public the Complainant’s affiliation with or approval of the disputed domain name; and (viii) it appears from related Facebook pages that the services linked to the disputed domain name are ultimately used in connection with a third-party financial company.
The Complainant contends that the disputed domain name was registered and is being used in bad faith because: (i) the Complainant’s earliest trademark registration predates the creation date of the disputed domain name by 18 years, in which time the FXCM trademark has gained significant reputation for the provision of Forex and CFD online trading; (ii) any average Internet user has access to the Complainant’s FXCM trademark registrations, as they can be found on public trademark databases; (iii) the Respondent has chosen to ignore the cease and desist letter sent by the Complainant’s representative on August 13, 2020; (iv) the Respondent’s awareness of the Complainant’s brand is demonstrated by the Respondent using the disputed domain name to host a website that is thematically similar in terms of content to the Complainant’s official website, that claims to offer services directly related to the Complainant, and that uses the Complainant’s FXCM logo; (v) the Respondent is using the Complainant’s FXCM trademark for commercial gain, causing confusion among online users that the disputed domain name is authorized by, or affiliated with, the Complainant; (vi) the Respondent’s use of the disputed domain name to offer what appears to be training and informational services in relation to, and in competition with, the Complainant, is indicative of bad faith, particularly because the website is intentionally deceptive; (vii) the disputed domain name appears to be operated by a third-party trading services company named “Financier Consulting”, which falsely insinuates it is authorized by or affiliated with the Complainant by using the Complainant’s logo on its Facebook page; and (viii) the website resolving from the disputed domain name does not accurately disclose that there is no commercial relationship with the Complainant, but rather is designed specifically to confuse online users.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
Once the gTLD “.com” is ignored (which is appropriate in this case), the disputed domain name consists of the whole of the Complainant’s registered word trademark FXCM preceded by the letters “fc” and a hyphen. The Complainant’s word trademark FXCM is recognisable in the disputed domain name. The addition of the non-distinctive string “fc-” does not prevent a finding of confusing similarity of the disputed domain name with the Complainant’s word trademark. Accordingly, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights.
B. Rights or Legitimate Interests
The Respondent is not a licensee of, or otherwise affiliated with, the Complainant, and has not been authorized by the Complainant to use its FXCM word trademark. The Respondent has not provided any evidence that it has been commonly known by, or has made a bona fide use of, the disputed domain name, or that it has, for any other reason, rights or legitimate interests in the disputed domain name. The evidence provided by the Complainant shows that the disputed domain name has been used to resolve to a website which, without authorization, displays the Complainant’s trademark and logo and, in some instances, links to the Complainant’s website. The contents of the Respondent’s website are such that many Internet users will form the false belief that it is operated by, or affiliated with, the Complainant. According to the present record, therefore, the disputed domain name is not being used in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. As described above, the Complainant has put forward a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, which has not been rebutted by the Respondent. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
The disputed domain name was registered many years after the Complainant first registered its FXCM word trademark. The evidence on the record provided by the Complainant with respect to its use of its FXCM word trademark, combined with the absence of any evidence provided by the Respondent to the contrary, is sufficient to satisfy the Panel that, at the time of registration of the disputed domain name, the Respondent knew of the Complainant’s FXCM word trademark. Furthermore, the evidence on the record provided by the Complainant indicates that the Respondent has used the disputed domain name to attract, for commercial gain, Internet users to a website by creating confusion in the minds of the public as to an association between the website and the Complainant. Accordingly, the Panel finds that the disputed domain name has been registered and is being used in bad faith.
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, <fc-fxcm.com>, be transferred to the Complainant.
Andrew F. Christie
Date: December 14, 2020