WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
OANDA Corporation v. 江栋亨 (Jiang Dong Heng)
Case No. D2021-3678
1. The Parties
The Complainant is OANDA Corporation, United States of America (“United States”), represented by Donahue Fitzgerald LLP, United States.
The Respondent is 江栋亨 (Jiang Dong Heng), China.
2. The Disputed Domain Name and Registrar
The disputed domain name <oandan.com> is registered with Shanghai Meicheng Technology Information Development Co., Ltd. (the “Registrar”).
3. Procedural History
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 3, 2021. On November 4, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 5, 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 November 5, 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 in English on November 8, 2021.
On November 5, 2021, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On November 8, 2021, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding.
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 in English and Chinese of the Complaint, and the proceeding commenced on November 12, 2021. In accordance with the Rules, paragraph 5, the due date for Response was December 2, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 3, 2021.
On December 6, 2021, the Complainant sent an email communication to the Center, requesting the addition of the domain names <oandan6.com>, <oandan8.com>, <ooandan.com>, and <oandan9.com> (the “Additional Domain Names”) to the Complaint. On December 7, 2021, the Center notified the Parties that the Rules do not explicitly provide for a Complaint to be amended after the commencement of a proceeding to include additional domain names; and, accordingly, it would be for the Panel to determine when appointed whether or not to accept the addition of new domain names to the Complaint and order further procedural steps, if any.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on December 17, 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.
On December 28, 2021, pursuant to the Panel’s request, the Center issued a request for registrar verification to the Registrar in respect of the Additional Domain Names. On December 28, 2021, the Registrar transmitted by email to the Center its verification response disclosing the registrant and contact information for the Additional Domain Names.
On January 5, 2022, the Panel issued Administrative Panel Procedural Order No. 1, pursuant to paragraphs 10 and 12 of the Rules:
(i) advising the Parties of the registrant and contact information for the Additional Domain Names;
(ii) requesting the Complainant to provide relevant arguments and evidence demonstrating that all named Respondents are, in fact, the same entity and/or that all domain names are under common control, by January 10, 2022;
(iii) requesting the Respondents to provide comments, if any, on the Complainant’s request to add the Additional Domain Names to the current proceeding, by January 15, 2022; and
(iv) extending the Decision due date until January 20, 2022.
On January 5, 2022, the Complainant withdrew its request for the addition of the Additional Domain Names to the Complaint.
4. Factual Background
The Complainant is a company incorporated in the United States and a provider, since 1996, of online currency exchange, and financial information services and products under the trade mark OANDA (the “Trade Mark”).
The Complainant is the owner of registrations in jurisdictions worldwide for the Trade Mark, including United States registration No. 2874938, registered on August 17, 2004.
The Respondent is apparently an individual resident in China.
C. The Disputed Domain Name
The disputed domain name was registered on September 2, 2021.
D. Use of the Disputed Domain Name
The disputed domain name resolved to an English language “phishing” website, containing the logo version of the Complainant’s Trade Mark, “user name” and “password” text boxes, and a “login” click on link (the “Website”).
5. Parties’ Contentions
The Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Mark; the Respondent has no rights or legitimate interests in respect of the disputed domain name; and the disputed domain name has been registered and is being used in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1. Language of the Proceeding
The language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11(a), in the absence of an agreement between the Parties, or unless specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement.
Paragraph 11(a) of the Rules allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding, in order to ensure fairness to the Parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the Parties and undue delay to the proceeding.
The Complainant requested that the language of the proceeding be English, for several reasons, including the fact the Website is an English language website. The Respondent did not file a response in this proceeding and did not make any submissions with respect to the language of the proceeding.
In exercising its discretion to use a language other than that of the Registration Agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both Parties, taking into account all relevant circumstances of the case, including matters such as the Parties’ ability to understand and use the proposed language, time, and costs.
The Panel finds there is sufficient evidence to suggest the likely possibility that the Respondent is conversant in the English language. The Panel notes also that the Respondent has chosen not to contest this proceeding, and that all of the Center’s communications with the Parties have been sent in English and Chinese.
The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner.
In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English.
6.2. Substantive Elements of the Policy
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration.
The disputed domain name consists of a common, obvious, or intentional misspelling of the Trade Mark (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.9).
The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Mark.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name:
(i) before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that he has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name has been used in respect of the Website, in order to fraudulently elicit the Complainant’s customers to provide their user names and passwords for the Complainant’s services.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name; and there has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to rebut the Complainant’s prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Panel therefore finds that the Respondent lacks rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
In light of the manner of use of the disputed domain name highlighted in section 6.2.B above, the Panel concludes 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 <oandan.com> be transferred to the Complainant.
Sebastian M.W. Hughes
Dated: January 18, 2022