WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
ICC Intercertus Capital Ltd v. Withheld for Privacy Purposes, Privacy Service Provided by Withheld for Privacy ehf / Ever Invest
Case No. D2021-3572
1. The Parties
The Complainant is ICC Intercertus Capital Ltd, Cyprus, represented by Mapa Trademarks SL, Spain.
The Respondent is Withheld for Privacy Purposes, Privacy Service Provided by Withheld for Privacy ehf, Iceland / Ever Invest, Latvia.
2. The Domain Name and Registrar
The disputed domain name <everprotrader.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 October 26, 2021. On October 27, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 27, 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 October 28, 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 November 2, 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 November 3, 2021. In accordance with the Rules, paragraph 5, the due date for Response was November 23, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 24, 2021.
The Center appointed Marina Perraki as the sole panelist in this matter on November 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.
4. Factual Background
Complainant provides financial services worldwide under the trademark EverFX through its website “www.everfx.com”. EverFX is an international online broker, providing access to over 130 tradable instruments from six different classes of assets for both retail and institutional investors.
Complainant is inter alia the owner of the European Union Trademark Registration No. 017995046, EverFX (word), filed on November 30, 2018 and registered on March 16, 2019 for services in international class 36. Complainant is furthermore the owner of the domain name <everfx.com> which was registered on January 3, 2016.
The Domain Name was registered on August 17, 2021 and leads to a website (the Website) mimicking that of Complainant. The Website copies, as per the Complaint, the same content, footers and license info, including information on Complainant’s group Licensees and authorisation to trade, sponsorships and trademark representation. As stated in the Complaint, when clicking on the word “Everinvest” under a “Switch to Ever Pro Trader” banner in the Website, the consumer is redirected to the current webpage of Complainant at <axiance.com>. As per Complainant, “Axiance” is the trade name used currently by the group of companies formerly operating as “EverFX”.
5. Parties’ Contentions
Complainant asserts that it has established all three elements required under paragraph 4(a) of the Policy for a transfer of the Domain Name.
Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy lists three elements, which Complainant must satisfy with respect to the Domain Name:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) 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.
A. Identical or Confusingly Similar
The Domain Name incorporates part of Complainant’s trademark EVERFX, as regards its first part “Ever”. This is sufficient to establish confusing similarity in the circumstances of this case (Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525).
The omission of the letters FX, short for Foreign Exchange, and the addition of the words “protrader”, short for “professional trader”, does not avoid a finding of confusing similarity as the “Ever” part of the EVERFX mark remains recognizable within the Domain Name, and the broader circumstances of the case affirms the confusing similarity (Express Scripts, Inc. v. Whois Privacy Protection Service, Inc. / Domaindeals, Domain Administrator, WIPO Case No. D2008-1302; mytheresa.com GmbH v. Domain Admin Private Registrations Aktien Gesellschaft, WIPO Case No. D2013-0904, WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), sections 1.7, and 1.8). The Panel notes that the Website at the Domain Name copies substantive parts of Complainant’s website with very subtle differences, and that Respondent’s intention seems to be targeting the Complainant’s trademark through the Domain Name. In these circumstances, the Panel finds that the content of the Website associated with the Domain Name confirms the Panel’s finding of confusing similarity (WIPO Overview 3.0, section 1.15).
The generic Top-Level Domain (“gTLD”) “.com” is disregarded, as gTLDs typically do not form part of the comparison on the grounds that they are required for technical reasons (Rexel Developpements SAS v. Zhan Yequn, WIPO Case No. D2017-0275; Hay & Robertson International Licensing AG v. C. J. Lovik, WIPO Case No. D2002-0122).
The Panel finds that the Domain Name is confusingly similar to the EVERFX mark of Complainant.
Complainant has established Policy, paragraph 4(a)(i).
B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Panel concludes that Respondent lacks rights or legitimate interests in respect of the Domain Name.
Respondent has not submitted any response and has not claimed any such rights or legitimate interests with respect to the Domain Name. As per Complainant, Respondent was not authorized to register the Domain Name.
Prior to the notice of the dispute, Respondent did not demonstrate any use of the Domain Name or a trademark corresponding to the Domain Name in connection with a bona fide offering of goods or services.
On the contrary, as Complainant demonstrated, the Domain Name is used to host the Website to impersonate Complainant and attempt to mislead Internet users into thinking that the services purportedly offered on the Website originate from Complainant. Such use demonstrates neither a bona fide offering of goods or services nor a legitimate interest of Respondent (Arkema France v. Aaron Blaine, WIPO Case No. D2015-0502).
The Panel finds that these circumstances do not confer upon Respondent any rights or legitimate interests in respect of the Domain Name.
Complainant has established Policy, paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation”, are evidence of the registration and use of the Domain Name in “bad faith”:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or
(ii) that Respondent has registered the Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
The Panel concludes that Respondent has registered and used the Domain Name in bad faith.
Because the EVERFX trademark had been used and registered by Complainant before the Domain Name registration, noting the use of the Domain Name, the Panel finds it more likely than not that Respondent had Complainant’s mark in mind when registering the Domain Name (Tudor Games, Inc. v. Domain Hostmaster, Customer ID No. 09382953107339 dba Whois Privacy Services Pty Ltd / Domain Administrator, Vertical Axis Inc., WIPO Case No. D2014-1754; Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000-0226).
Respondent should have known about Complainant’s rights, as such knowledge is readily obtainable through a simple browser search and also due to Complainant’s nature of business, provided also online (see Caesars World, Inc. v. Forum LLC, WIPO Case No. D2005-0517; Compart AG v. Compart.com / Vertical Axis Inc., WIPO Case No. D2009-0462).
Furthermore, the content of the Website gives the impression that it originates from Complainant, copying content and mimicking the website of Complainant, thereby giving the false impression that the Website emanates from Complainant and is its main website. This further supports registration in bad faith reinforcing the likelihood of confusion with Complainant’s trademark and business, as Internet users are likely to consider the Domain Name as in some way endorsed by or connected with Complainant (WIPO Overview 3.0, section 3.1.4 and 3.2.1).
The above further removes any doubt that Respondent knew of Complainant and chose the Domain Name with knowledge of Complainant and its industry (Safepay Malta Limited v. ICS Inc., WIPO Case No. D2015-0403).
As regards bad faith use, Complainant demonstrated that the Domain Name was employed to host a Website, which appeared falsely to be that of Complainant.
Furthermore, the use of the Domain Name to resolve to a website passing itself off as the website of Complainant, whether for phishing of sensitive data from Internet users, or otherwise seeking to take unfair advantage of Complainant’s mark, supports a finding of bad faith in these circumstances (see section 3.4 of the WIPO Overview 3.0).
The Panel considers also the apparent initial concealment of the Domain Name holder’s identity through use of a privacy shield is further indicative of bad faith in the circumstances of this case (BHP Billiton Innovation Pty Ltd v. Domains By Proxy LLC / Douglass Johnson, WIPO Case No. D2016-0364).
Furthermore, as Complainant demonstrated, Respondent is the same Respondent as the one in ICC Intercertus Capital Ltd. v. Privacy service provided by Withheld for Privacy ehf / Ever Invest, WIPO Case No. D2021-1706 for the domain name <everinvest.org>. In that case, the domain name leaded also to a webpage mimicking that of Complainant. As per the Complaint, the Domain Name in the present case was registered a few days after the decision of ICC Intercertus Capital Ltd. v. Privacy service provided by Withheld for Privacy ehf / Ever Invest, WIPO Case No. D2021-1706 was issued and with the same registrar. Lastly, when clicking on the word “Everinvest” in the Website, the consumer is redirected to the current webpage of Complainant at “axiance.com”. Per Complainant, “Axiance” is the trade name used currently by the group of companies formerly operating as “EverFX”.
Under these circumstances and on this record, the Panel finds that Respondent registered and used the Domain Name in bad faith.
Complainant has established 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, <everprotrader.com>, be transferred to Complainant.
Date: December 13, 2021