WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
ICC Intercertus Capital Ltd. v. Privacy service provided by Withheld for Privacy ehf / Ever Invest
Case No. D2021-1706
1. The Parties
The Complainant is ICC Intercertus Capital Ltd., Cyprus, represented by Mapa Trademarks SL, Spain.
The Respondent is Privacy service provided by Withheld for Privacy ehf, Iceland / Ever Invest, Latvia.
2. The Domain Name and Registrar
The disputed domain name <everinvest.org> is registered with NameCheap, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 31, 2021. On June 1, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 2, 2021, 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 June 2, 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 June 7, 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 June 10, 2021. In accordance with the Rules, paragraph 5, the due date for Response was June 30, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 1, 2021.
The Center appointed Marilena Comanescu as the sole panelist in this matter on July 8, 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, established in Cyprus, provides financial services worldwide through the website “www.everfx.com“. EverFX is an international online broker, providing access to over 130 tradable instruments from six asset classes for both retail and institutional investors.
The Complainant holds trademark rights for EVERFX, such as the European Union word trademark EVERFX registration No. 017995046 filed on November 30, 2018, and registered on March 16, 2019, for services in International Class 36.
The Complainant’s website is available at “www.everfx.com”.
The disputed domain name was registered on April 28, 2021, and at the time of filing the Complaint it was used in relation to a website with a very similar content with the Complainant’s official website, presenting the Respondent as “Ever Invest Global Investment Leader”, and providing identical services, displaying the same design, footers, and license information as presented on the Complainant’s official website.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is confusingly similar to its trademark EVERFX as it incorporates the dominant element of its mark “ever” whereas “fx” is an and acronym of “foreign exchange”, that the Respondent has no rights or legitimate interests in the disputed domain name, and that the Respondent registered and is using the disputed domain name in bad faith. The Complainant requests the transfer of the disputed domain name to it.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In view of the Respondent’s default, the discussion and findings will be based upon the contentions in the Complaint and any reasonable position that can be attributable to the Respondent. Under paragraph 4(a) of the Policy, a complainant can only succeed in an administrative proceeding under the Policy if the following circumstances are met:
(i) the disputed domain name 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 the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The Panel will further analyze the concurrence of the above circumstances.
A. Identical or Confusingly Similar
The Panel finds that the Complainant holds rights in the EVERFX trademark.
The disputed domain name <everinvest.org> incorporates the dominant element of the Complainant’s trademark “ever” and replaces the acronym “fx” deriving from “foreign exchange” with the term “invest”.
It is well accepted by the UDRP panels that the first element functions primarily as a standing requirement. The standing test for confusing similarity involves a reasoned but relatively straightforward comparison between the complainant’s trademark and the disputed domain name.
While each case is judged on its own merits, in cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing.
Also, numerous UDRP panels have considered that the addition of other terms (whether descriptive or geographic term, pejorative, meaningless or otherwise) to trademarks in a domain name is not sufficient to escape a finding of confusing similarity.
See sections 1.7 and 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
Most notably also the content of the website at the disputed domain name unmistakably mimics the Complaiant’s website. See section 1.15 of the WIPO Overview 3.0 stating “[i]n some instances, panels have however taken note of the content of the website associated with a domain name to confirm confusing similarity whereby it appears prima facie that the respondent seeks to target a trademark through the disputed domain name.”
It is well established in decisions under the UDRP that the generic Top-Level Domain (“gTLD”) (e.g., “.org”, “.online”, “.com”, “.tv”) may typically be disregarded for the purposes of consideration of confusing similarity between a trademark and a domain name.
Given the above, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark EVERFX, pursuant to the Policy, paragraph 4(a)(i).
B. Rights or Legitimate Interests
The Complainant asserts that the Respondent does not hold any trademark rights, license, or authorization whatsoever to use the mark EVERFX, that the Respondent is not commonly known by the disputed domain name, and that the Respondent has not used the disputed domain name in connection with a legitimate noncommercial or fair use or a bona fide offering of goods and services.
Under the Policy, “where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element”. See section 2.1 of the WIPO Overview 3.0.
The Respondent has not replied to the Complainant’s contentions and has not come forward with relevant evidence to rebut the Complainant’s prima facie case.
There is nothing in the record suggesting that the Respondent has ever been commonly known by the disputed domain name or that the Respondent made a bona fide offering of goods or services or a legitimate noncommercial use under the disputed domain name.
The Respondent has used the disputed domain name in connection with a website providing services identical to those of the Complainant, and tellingly, reproducing the design and information from the Complainant’s official website. In this regard, UDRP panels have categorically held that the use of a domain name for illegal activity such as impersonation/passing off can never confer rights or legitimate interests in a respondent. See section 2.13 of the WIPO Overview 3.0.
Consequently, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name, pursuant to the Policy, paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
The Complainant holds trademark rights for EVERFX since at least 2018.
The disputed domain name was created in 2021 and incorporates the Complainant’s mark slightly altered, the final letters “fx” deriving from “foreign exchange” being replaced with “invest”. The Complainant’s business is in the field of financial services.
At the time of filing the Complaint, the disputed domain name resolved to a web page with a very similar content effectively mimicing the Complainant’s official website, presenting the Respondent as “Ever Invest Global Investment Leader”, providing services identical to those of the Complainant, and displaying the Complainant’s trademarks, designs, and other website information.
Paragraph 4(b)(iv) of the Policy provides that the use of a domain name to intentionally attempt “to attract, for commercial gain, Internet users to [the respondent’s] 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 [the respondent’s] website or location or of a product or service on [the respondent’s] website or location” is evidence of registration and use in bad faith.
Given that the disputed domain name is confusingly similar to the Complainant’s trademark and the website operated under the disputed domain name provides identical services, uses a similar commercial name, mimics the color scheme of the Complainant’s website, and displays the Complainant’s trademarks, awards, and information copied from its official website (i.e., identical footers including the same three columns and identical categories and text), indeed in this Panel’s view, the Respondent intended to attract Internet users accessing the website corresponding to the disputed domain name who may be confused and believe that the website is held, controlled by, or somehow affiliated or related to the Complainant, for its commercial gain.
Also, such impersonation of the Complainant will induce the Internet users accesing the Respondent’s website into the belief that they are accesing the website of the Complainant with the likely result of damaging the Complainant’s business from redirection of its Internet users to Respondent’s website and ultimately, it will cause reputational damage.
Further, the Respondent registered the disputed domain name under a privacy service, provided inaccurate contact information in the WhoIs, and refused to participate in the present proceedings in order to put forward any arguments in its favor. Having in view the other circumstances of this case, such facts constitute further evidence of bad faith behavior.
For all the above reasons, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith, pursuant to the Policy, paragraph 4(a)(iii).
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 <everinvest.org> be transferred to the Complainant.
Date: July 22, 2021