WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
OANDA Corporation v. Ani James, Richcrest
Case No. D2021-1870
1. The Parties
The Complainant is OANDA Corporation, United States of America (“United States”), represented by Donahue Fitzgerald, United States.
The Respondent is Ani James, Richcrest, Nigeria.
2. The Domain Name and Registrar
The disputed domain name, <oandaoptionstrade.com> (the “Domain Name”), is registered with NameCheap, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 14, 2021. On June 15, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On June 15, 2021, 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 June 22, 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 25, 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 28, 2021. In accordance with the Rules, paragraph 5, the due date for Response was July 18, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 27, 2021.
The Center appointed Tony Willoughby as the sole panelist in this matter on July 29, 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.
The invitation to the Complainant to submit an amendment to the Complaint stemmed from the fact that the Domain Name was registered in the name of a privacy service. In response to the Center’s registrar verification request, the Registrar disclosed the name and address of the entity in whose name the Domain Name had been registered. The amended Complaint names Ani James, the underlying registrant, as the Respondent.
4. Factual Background
The Complainant is a United States-based corporation having its principal place of business in New York, United States. Since 1996 the Complainant has operated a currency exchange services website at “www.oanda.com” under and by reference to the name “OANDA”. The Complainant is the registered proprietor of various trade mark registrations covering the name “OANDA”, one of which is United States Trade mark Registration No. 2874938 OANDA (typed drawing) registered on August 17, 2004 (application filed August 28, 2003) in class 36 for “currency exchange services, financial information services.” The Complainant’s domain name <oanda.com> was registered on August 4, 1996.
The Domain Name was registered on November 29, 2020 and is connected to a website inviting visitors to register/log in giving their personal details and to invest money with a view to making a financial profit, benefiting from the investment experience of the Respondent. The home page informs the visitor that the Respondent is a “Leading Dividend Growth Investing Platform”. It encourages the visitor to “Invest with “Oandsoptionstrade [sic] today” having enrolled with Oandaoptionstrade (spelt correctly). The website further informs that “Oandaoptionstrade is an essential business trading investment company that is registered in United States of America with the registration number 1075868 CT.”
On December 10, 2020 the Complainant’s representative sent letters by email to the email addresses of the Registrar and the Respondent appearing on the Registrar’s Whois record for the Domain Name. The letters drew attention to the Complainant’s trade mark rights and the Complainant’s cause for complaint in respect of the Respondent’s registration and use of the Domain Name and seeking inter alia transfer of the Domain Name to the Complainant. No replies were received.
On April 22, 2021 the Complainant’s representative sent similar letters by email to the Registrar seeking inter alia immediate suspension of the websites connected to the Domain Name “such that they are no longer accessible to the public”. No replies were received.
5. Parties’ Contentions
The Complainant contends that the Domain Name is confusingly similar to the Complainant’s OANDA registered trade mark; that the Respondent has no rights or legitimate interests in respect of the Domain Name; and that the Domain Name has been registered and is being used in bad faith.
The Complainant asserts that it has no connection with the Respondent and has given the Respondent no permission to use its OANDA trade mark. It contends that the Respondent registered the Domain Name with knowledge of the Complainant and with the intention of impersonating the Complainant. It contends that the Respondent’s purpose has been to receive personal information and investment monies from Internet users visiting the Respondent’s website believing that they are communicating with the Complainant.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that:
(i) the Domain Name is identical or confusingly similar to a trade mark 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 has been registered and is being used in bad faith.
B. Identical or Confusingly Similar
The Domain Name comprises the Complainant’s registered trade mark OANDA, the words, “options” and “trade”, and the “.com” generic Top Level Domain identifier.
Section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) explains the test for identity or confusing similarity under the first element of the Policy and includes the following passage:
“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.”
The Complainant’s OANDA registered trade mark is readily recognizable in its entirety in the Domain Name.
The Panel finds that the Domain Name is confusingly similar to a trade mark in which the Complainant has rights.
C. Rights or Legitimate Interests
The Complainant recites the circumstances set out in paragraph 4(c) of the Policy, any of which if found by the Panel to be present shall demonstrate rights or legitimate interests for the purposes of this element of the Policy, and contends that none of them is applicable.
The Complainant asserts that it has no connection with the Respondent and has given the Respondent no permission to use its OANDA trade mark. It contends that the Respondent registered the Domain Name with knowledge of the Complainant and with the intention of impersonating the Complainant. It contends that the Respondent’s purpose has been to receive personal information and investment monies from Internet users visiting the Respondent’s website believing – incorrectly – that they are communicating with the Complainant.
The first five letters of the Domain Name (“oanda”) constitute its only distinctive element. It is by all appearances meaningless and represents the name of the Complainant, a leading player in the financial services field based in the United States. The remaining elements of the Domain Name at the second level (“options” and “trade”) are descriptive words apt for use in relation to the services provided by the Complainant.
As indicated in section 4 above, the Respondent’s website claims the Respondent to be “an essential business trading investment company that is registered in United States of America with the registration number 1075868 CT.” The Respondent’s registered address for the Domain Name is in Nigeria.
The Panel finds that the Complainant has made out a prima facie case under this element of the Policy; in other words, a case calling for an answer from the Respondent.
The Respondent has chosen not to respond to the Complainant’s contentions. In the absence of an explanation from the Respondent the Panel finds it inconceivable that a registrant apparently based in Nigeria and purporting to operate a website (a) on behalf of a United States investment trading company (b) in much the same field as the Complainant, a leading United States player in that field of activity, and (c) using the Complainant’s name and trade mark can have any rights or legitimate interests in respect of the Domain Name.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
D. Registered and Used in Bad Faith
Following on from that finding under section C above, the Panel is satisfied on the unchallenged evidence put forward by the Complainant that the Complainant’s contentions under this head of the Policy are well-founded.
Paragraph 4(b) of the Policy sets out a non-exhaustive list of circumstances, which if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. The Complainant relies upon sub-paragraph (iv), which provides: “by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.”
The evidence supports the Complainant’s contention that the Complainant’s OANDA trade mark is uniquely distinctive of the Complainant’s services and that the Respondent can only have selected the Domain Name with knowledge of the Complainant and its business. Were it the case that the Respondent was trading in a completely different area of trade and offered an explanation for its registration of the Domain Name it might have been otherwise. However, the Respondent is purporting to trade in what appears to be a very similar area of business to that of the Complainant and in the Complainant’s jurisdiction. Confusion with the Complainant was an inevitable result of the Respondent’s choice of domain name and the Panel is in no doubt that the Respondent intended that result.
The Respondent is using the Domain Name in a manner calculated to entice visitors to its website to provide the Respondent with personal information and investment monies in the mistaken belief that the Respondent’s website is a website of or authorized by the Complainant. On no basis can such a use be anything other than a bad faith use under the Policy.
The Panel finds that the Respondent registered the Domain Name in bad faith within the meaning of paragraph 4(b)(iv) 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 Domain Name, <oandaoptionstrade.com>, be transferred to the Complainant.
Date: August 10, 2021