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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

IMC Trading B.V. v. KBS Capital, KBS Capital Markets Ltd

Case No. DIO2021-0007

1. The Parties

The Complainant is IMC Trading B.V., Netherlands, represented by Merkenbureau Knijff & Partners B.V., Netherlands.

The Respondent is KBS Capital, KBS Capital Markets Ltd, Marshall Islands.

2. The Domain Name and Registrar

The disputed domain name, <imctrades.io> (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 April 29, 2021. On April 30, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On April 30, 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 May 3, 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 May 4, 2021.

The Center verified that the Complaint, together with the amended Complaint, satisfied the formal requirements of the .IO Domain Name Dispute Resolution Policy (the “Policy”), the Rules for .IO Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for .IO 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 May 6, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 26, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 27, 2021.

The Center appointed Tony Willoughby as the sole panelist in this matter on June 1, 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 file an amended 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 is currently registered. The amended Complaint names the underlying registrant as the Respondent.

4. Factual Background

The Complainant is a financial services company incorporated in the Netherlands in 1990. It operates a website at “www.imc.com”. It is the registered proprietor of various trade mark registrations covering the name under and by reference to which it has carried on trade for over 30 years, including the following International Registrations:

Registration No. 929842 IMC (word) registered on June 26, 2007, and Registration No. 1488678 IMC TRADING (words) registered on July 23, 2019. Both registrations are in class 36 for a variety of financial services.

The Domain Name was registered on December 18, 2020, and is connected to a website offering financial services similar to those offered by the Complainant at its “www.imc.com” website.

On December 14, 2020 (four days prior to registration of the Domain Name) the Complainant filed a complaint with the Center under the Uniform Domain Name Dispute Resolution Policy in respect of the domain name, <imctrades.com>. A decision in that case (IMC Trading B.V. v. Easy FX Easy FX Solutions, WIPO Case No. D2020-3389) was issued on March 22, 2021, directing that the domain name in issue be transferred to the Complainant. The learned panelist in that case found that the domain name had been registered and was being used in bad faith, effectively to impersonate the Complainant. The party said to have been operating the fraudulent website connected to that domain name was the Respondent.

5. Parties’ Contentions

A. Complainant

The Complainant contends that the Domain Name is confusingly similar to the Complainant’s IMC and IMC TRADING registered trade marks; 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.

Essentially, the Complainant’s case is that the Respondent, the operator of the website at “www.imctrades.com”, registered the Domain Name on having been notified of the filing of the complaint in respect of the <imctrades.com> domain name (see section 4 above) and in anticipation that in due course, as happened, the domain name would be transferred to the Complainant. The Complainant contends that on that transfer having been completed the Domain Name was connected to the offending website in order to obviate the effect of the decision in IMC Trading B.V. v. Easy FX Easy FX Solutions, WIPO Case No. D2020-3389, and enable the Respondent to continue with its fraudulent activity.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

A. General

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 or is being used in bad faith.

B. Identical or Confusingly Similar

While the Policy is not in all respects identical to the Uniform Domain Name Dispute Resolution Policy (“UDRP”), the two policies are sufficiently similar for it to be useful to refer where appropriate to the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). Paragraph 4(a) of the Policy is identical to paragraph 4(a) of the UDRP.

The Domain Name comprises the Complainant’s IMC registered trade mark followed by the dictionary word “trades” and the “.io” country code Top-Level Domain identifier.

Section 1.7 of WIPO Overview 3.0 explains the test for identity or confusing similarity under the first element of the UDRP 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 same is true of the position under the Policy. The Complainant’s 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 has produced evidence from governmental and other authorities to demonstrate that the Respondent and the website connected to the <imctrades.com> domain name have been branded as fraudulent and blacklisted. The Complainant asserts that the website connected to the Domain Name is identical to that previously connected to <imctrades.com>. The Complainant also contends that, before the implementation of the decision in IMC Trading B.V. v. Easy FX Easy FX Solutions, WIPO Case No. D2020-3389, the domain name <imctrades.com> was redirecting to the Domain Name.

The Panel is satisfied 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 not sought to answer the Complainant’s contentions.

The evidence filed by the Complainant is compelling. In the view of the Panel the Complainant’s contention that the Respondent registered the Domain Name to enable it to perpetuate the fraud perpetrated through the <imctrades.com> website, an activity brought to a close by the decision in IMC Trading B.V. v. Easy FX Easy FX Solutions, WIPO Case No. D2020-3389, is well-founded.

The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.

D. Registered or Used in Bad Faith

By the same reasoning mentioned in Section C above, the Panel finds that the Domain Name has been registered and is being used in bad faith within the meaning of paragraph 4(a)(iii) of the Policy.

It is evident to the Panel that the Respondent was aware of the Complainant when it registered the Domain Name, noting IMC Trading B.V. v. Easy FX Easy FX Solutions, WIPO Case No. D2020-3389. Moreover, the nature of the Domain Name and the content hosted on the website at the Domain Name carries, as was intended by the Respondent, a high likelihood of association or affiliation with the Complainant.

Accordingly, the Panel finds that the Complainant succeeds on the third element of the Policy.

7. Decision

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, <imctrades.io>, be transferred to the Complainant.

Tony Willoughby
Sole Panelist
Date: June 4, 2021

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