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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

FXCM Global Services, LLC v. Super Privacy Service LTD c/o Dynadot / dada wang

Case No. D2021-0732

1. The Parties

The Complainant is FXCM Global Services, LLC, United States of America, represented by SafeNames Ltd., United Kingdom.

The Respondent is Super Privacy Service LTD c/o Dynadot / Dada Wang, China.

2. The Domain Name and Registrar

The disputed domain name <fxcm111.com> (the “Domain Name”) is registered with Dynadot, LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 10, 2021. On March 11, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain name. On March 12, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on March 19, 2021 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 March 23, 2021.

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 March 26, 2021. In accordance with the Rules, paragraph 5, the due date for Response was April 15, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 16, 2021.

The Center appointed Mathias Lilleengen as the sole panelist in this matter on May 5, 2021. 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 operates as a retail broker in the foreign exchange (“Forex”) market. The Complainant provides global traders with trading tools and training educators. As part of the Complainant’s services, it offers clients enhanced packages. This includes FXCM Pro, which provides retail brokers, small hedge funds and emerging market banks access to wholesale execution and liquidity. FXCM Prime provides high and medium frequency funds access.

The Complainant owns trademark registrations in FXCM, such as United States Registration No. 2620953, registered on September 17, 2002 and European Union Registration No. 003955523, registered on November 3, 2005. The Complainant operates from its main website, “www.fxcm.com” and offers its services in several languages. The Complainant has registered domain names which feature the FXCM brand, for example <fxcm.asia>, <fxcm.blog> and <fxcm.broker>. The Complainant has also established a social media presence on Facebook, Twitter and YouTube.

According to the Registrar, the Domain Name was registered on January 4, 2021. The Complainant has provided evidence that the Domain Name has been used to set up a website that display the Complainant’s logo and suggest that the Complainant is the source of the website. At the time of the Decision, the Domain Name resolved to an error page with Chinese language.

5. Parties’ Contentions

A. Complainant

The Complainant provides evidence of trademark registrations. The only element of the Domain Name which differs from the Complainant’s trademark is the addition of the numerical figure “111” at the end of the Domain Name, and the Complainant argues that this addition does not prevent a finding of confusing similarity.

The Complainant asserts that the Respondent lacks rights or legitimate interests in the Domain Name. There is no evidence that the Respondent has any registered or unregistered trademark rights in the term FXCM, and the Respondent has not received any license from the Complainant. The Respondent cannot establish rights in the Domain Name, as it has not made any use of, or demonstrable preparations to use, the Domain Name in connection with a bona fide offering of goods or services. On the contrary, there is evidence that the Respondent has used the Domain Name for a website that falsely suggests affiliation with the Complainant. Moreover, the website appears to offer a login portal facility enabling users to input personal data, possibly for phishing purposes.

The Complainant believes the Respondent knew or should have known of the Complainant and the Complainant’s trademark rights when the Respondent registered the Domain Name. The Respondent has been using the Domain Name to attract consumers by creating a likelihood of confusion with the Complainant’s trademark. Moreover, the Domain Name may have been used as part of a phishing fraud.

B. Respondent

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

6. Discussion and Findings

A. Identical or Confusingly Similar

The Complainant has established that it has rights in the trademark FXCM.

The test for confusing similarity involves the comparison between the trademark and the Domain Name. In this case, the Domain Name incorporates the Complainant’s trademark, with the addition of “111” at the end. The addition does not prevent a finding of confusing similarity between the Domain Name and the Complainant’s trademark. For the purpose of assessing under paragraph 4(a)(i) of the Policy, the Panel may ignore the generic Top-Level Domains (“gTLD”); see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.11.

The Panel finds that the Domain Name is confusingly similar to a trademark in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy

B. Rights or Legitimate Interests

The Complainant has made unrebutted assertions that it has not granted any authorization to the Respondent to use the Complainant’s trademark. There is no evidence that the Respondent has registered the Domain Name as a trademark or acquired unregistered trademark rights. The Respondent cannot establish rights in the Domain Name, as it has not made use of, or demonstrable preparations to use, the Domain Name in connection with a bona fide offering. The Respondent’s use of the Domain Name is clearly not bona fide. The composition and use of the Domain Name carries a risk of implied affiliation and cannot constitute fair use in the circumstances of this case, see WIPO Overview 3.0, section 2.5. The Complainant has put forward a prima facie case, which the Respondent has not rebutted.

Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name in accordance with paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

Based on the case file, the Respondent must have been aware of the Complainant when the Respondent registered the Domain Name. The Panel agrees with the Complainant that the Respondent by registering the Complainant’s trademark in the Domain Name was seeking to create a likelihood of confusion with the trademark to mislead third parties, evidenced by the Respondent’s use of the Domain Name. The Respondent’s use of a privacy service and the fact that the Respondent has not replied to the Complainant’s contentions, further points to bad faith.

For the reasons set out above, the Panel concludes that the Domain Name was registered and is being used in bad faith, within the meaning of 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 Domain Name <fxcm111.com> be transferred to the Complainant.

Mathias Lilleengen
Sole Panelist
Date: May 14, 2021

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