WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Exness Holdings CY Limited v. Domains By Proxy, LLC and Indra Kumar
Case No. DCO2014-0036
1. The Parties
Complainant is Exness Holdings CY Limited of Limassol, Cyprus, represented by Crowell & Moring, LLP, Belgium.
Respondents are Domains By Proxy, LLC of Scottsdale, Arizona, United States of America and Indra Kumar of New Delhi, India (collectively, "Respondent").
2. The Domain Name and Registrar
The disputed domain name <exnessindia.co> is registered with GoDaddy.com, LLC (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on December 2, 2014. On December 2, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 5, 2014, 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 Complainant on December 8, 2014 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to amend the Complaint. Complainant filed an amended Complaint on December 10, 2014.
The Center verified that the 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(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceeding commenced on December 11, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was December 31, 2014. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on January 6, 2015.
The Center appointed Lawrence K. Nodine as the sole panelist in this matter on January 15, 2015. 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 has used its EXNESS trademark in connection with its financial trading business since 2011.
Complainant owns the following international trademark registration for which protection has been granted in numerous countries:
EXNESS and EX Design, International Registration No. 1119502, registered on January 19, 2012 in International Class 36.
The disputed domain name was registered on June 27, 2014 and contains an expiration date of June 26, 2015.
5. Parties' Contentions
Complainant owns the trademark EXNESS which is registered in numerous countries for trading on financial markets. Complainant has used its trademark since 2011.
The disputed domain name incorporates Complainant's EXNESS trademark in its entirety and only adds the geographic term "india" which is a mere geographic description, not providing any distinction from Complainant's EXNESS trademark. The addition of the suffix "india" serves to emphasize the potential geographical location of Complainant's business which increases the level of confusion of Internet users.
Thus, the disputed domain name is confusingly similar to the trademark in which Complainant has rights.
Respondent has no rights or legitimate interests in the disputed domain name since Respondent is not commonly known by the disputed domain name, has not acquired trademark or service mark rights in the EXNESS trademark and was not granted any license or permission from Complainant to use its EXNESS trademark. Further, the disputed domain name is used to host a website which is almost an exact replica of Complainant's genuine website.
Regarding registration in bad faith, Complainant states that at the time Respondent registered the disputed domain name, Respondent must have been aware of Complainant and its trademarks since the content provided on Respondent's website linked to the disputed domain name, refers to Complainant's business. The website which contains Complainant's trademarks, including its design mark, is almost an exact replica of Complainant's genuine website, which shows that Respondent is clearly targeting Complainant. Respondent could not reasonably have been unaware of Complainant's EXNESS trademark at the time it registered the disputed domain name.
Regarding use in bad faith, Complainant states that by copying Complainant's website, Respondent is creating a high likelihood of confusion with Complainant's trademark as to the source, sponsorship, affiliation or endorsement of the website. The website linked to the disputed domain name also copies Complainant's license number claiming it is authorized and regulated by CySEC (Cyprus Securities and Exchange Commission). Respondent uses the disputed domain name to intentionally attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with Complainant's trademark as to the source, sponsorship, affiliation or endorsement of the website. This conduct confirms that Respondent has used the disputed domain name in bad faith. In addition, by hiding behind a privacy service, Respondent took active steps to conceal its identity which further evidences Respondent's bad faith.
For the above reasons, it is clear that Respondent registered and uses the disputed domain name in bad faith.
Respondent did not reply to Complainant's contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to divest Respondent of the disputed domain name, Complainant must demonstrate each of the following:
(i) the disputed 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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Panel finds that Complainant has trademark rights in the EXNESS trademark and that the disputed domain name is confusingly similar to it because the disputed domain name incorporates the entire EXNESS trademark. The addition of the geographically descriptive term "india" and the country-code Top-Level Domain ".co" to the disputed domain name does not negate this confusing similarity.
The Panel finds that Complainant has satisfied paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
If a complainant makes a prima facie case that the respondent lacks rights or legitimate interests in a domain name, the burden of production shifts to the respondent to establish its rights or legitimate interests in that domain name. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 2.1. The ultimate burden of proof, however, remains with the complainant. Id. Vicar Operating, Inc. v. Domains by Proxy, Inc. / Eklin Bot Systems, Inc., WIPO Case No. D2010-1141.
The evidence of record supports Complainant's unrebutted allegations that Respondent has never been commonly known by the name "Exness", is not authorized to use the EXNESS mark and is not sponsored by or affiliated with Complainant in any way. Accordingly, the Panel finds that Complainant has made a prima facie showing that Respondent has no rights or legitimate interests in the disputed domain name.
The Panel finds that Complainant has carried its burden and satisfied paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Respondent did not contest Complainant's allegations of bad faith registration and use. It is highly unlikely that Respondent was unaware of Complainant's trademark rights when Respondent registered the disputed domain name on June 27, 2014, since Complainant had trademark registrations in the EXNESS mark since January 19, 2012 and had used the mark extensively since 2011.
There is also evidence of bad faith use. Respondent's website found at "www.exnessindia.co" and as seen in Annex 9 of the Complaint, is almost an exact replica of Complainant's website and makes use of Complainant's EXNESS trademarks. Under the Policy, it is evidence of bad faith that, "by using the disputed domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with complainant's mark as to source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location." Paragraph 4(b)(iv) of the Policy.
For the reasons set forth above, the Panel finds that Respondent registered and is using the disputed domain name in bad faith, and that Complainant has satisfied paragraph 4(a)(iii) 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 disputed domain name <exnessindia.co> be transferred to Complainant.
Lawrence K. Nodine
Date: January 30, 2015