Administrative panel decision forex Capital Markets llc V. John Doe




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ARBITRATION
AND
MEDIATION CENTER




ADMINISTRATIVE PANEL DECISION

Forex Capital Markets LLC v. John Doe

Case No. D2015-1228



1. The Parties

Complainant is Forex Capital Markets LLC of New York, New York, United States of America, represented by SafeNames Ltd., United Kingdom of Great Britain and Northern Ireland.


Respondent is John Doe of Abababa, South Africa.


2. The Domain Name and Registrar

The disputed domain name 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 July 15, 2015. On July 16, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 16, 2015, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.


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 July 29, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was August 18, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on August 19, 2015.
The Center appointed Roberto Bianchi as the sole panelist in this matter on August 28, 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

The following facts were taken from the Complaint:


Complainant is a Futures Commission Merchant registered with the National Futures Association (NFA), the self-regulatory organization for the United States of America (“U.S.”) derivatives industry. Complainant was incorporated in Delaware in 1999. It was started as a 24 hour global currency market with USD 250 million a month being traded by the end of their first year. As of January 2015 Complainant has over 220,000 active accounts worldwide. Complainant was the first foreign exchange (“forex”) trading company listed on the New York Stock Exchange.
Complainant, operating under its FXCM mark is a leading provider of currency trading and related services to retail and institutional customers through various trading platforms. It operates from its main website “www.fxcm.com” and offers its services in 17 languages. Complainant, with 800 employees worldwide, has offices in the United Kingdom of Great Britain and Northern Ireland, Germany, Australia, France, Italy, Greece, China, Japan and affiliate offices in Canada, Israel, Chile and Lebanon.


Complainant owns, inter alia, the following trademark registrations:


Trademark

Jurisdiction

Registration Number

Registration Date

International Class

FXCM FOREX CAPITAL MARKETS

International Trademark

1049102

August 5, 2010

36 and 41

FXCM

International Trademark

872083

December 3, 2004

36 and 41

FXCM

U. S.

2620953

September 17, 2002

36

FXCM

U. S.

3006018

October 11, 2005

41

FXCM FOREX CAPITAL MARKETS

U. S.

3685408

September 22, 2009

36 and 41

FXCM

Community Trademark

003955523

November 3, 2005

35 and 36

FXCM

Singapore

T1012662A

November 10, 2011

36 and 41


The registration record on the Registrar`s WhoIs database for the disputed domain name was created on September 22, 2014.


FXCManagement Ltd, a private limited company with an address in London, England, United Kingdom, was incorporated on October 27, 2014.


On July 2, 2015, the Financial Services and Market Authority (FSMA), the Belgian entity responsible for supervising the financial markets and listed companies, issued a press release1 warning the public against the activities of FXCM (cloned firm) / FXCManagement. According to the FSMA, FXCM (cloned firm) / FXCManagement is



“a company that offers highly risky investment instruments in Belgium without complying with Belgian financial legislation. FXCM / FXCManagement is not an authorized investment firm or credit institution in Belgium. It is therefore not allowed to provide banking and/or investment services in or from Belgium. Furthermore, certain investment instruments that this company offers, i.e. forex products and CFDs, are speculative and involve significant risks, with the investor in such products running the risk of losing the entire amount invested or, in some cases, even more than that amount.” […] “Finally, FXCM / FXCManagement has not published a prospectus approved by the FSMA, as is required before any public offering of investment instruments may be made within the territory of Belgium. The FSMA therefore strongly advises against responding to any offers of financial services or to any public offers of investment instruments made by FXCM / FXCManagement and against transferring money to any account number it might mention. FXCM / FXCManagement uses the website “www.fxcmanagement.com”.


Moreover, the company is also behind attempts at recovery room-type fraud, a form of fraud that has been the subject of a warning published by the FSMA on March 16, 2015. FXCM / FXCManagement tries to claim that it holds an authorization by referring to various items of information available on-line about FXCM Securities limited, a company established in the United Kingdom which has indicated its intention to operate in Belgium under the freedom to provide services. This reference to FXCM Securities limited is, however, a case of identity theft: FXCM / FXCManagement has no connection with FXCM Securities limited; the two companies in fact have separate websites and contact details. The aforementioned practice is a common feature of the type of fraud known as “cloned firms”: the identity of an existing person or company is usurped in order to give the appearance of trustworthiness or legitimacy, and thereby to convince investors.”


Presently, attempts to connect to the “www.fxcmanagement.com” website result in the following error: “Not Found HTTP Error 404. The requested resource is not found”.



5. Parties’ Contentions

A. Complainant

In its Complaint, Complainant makes the following contentions:


The disputed domain name is identical or confusingly similar to Complainant`s FXCM trademark. When drawing a comparison between the visual or aural nature of the trademark FXCM and the string of the disputed domain name it is unmistakably confusingly similar. The generic Top-Level Domain (“gTLD”) extension “.com” is not sufficient to distinguish the disputed domain name from the mark. The relevant part of the disputed domain name is “fxcmanagement”, which contains the mark FXCM with the element “anagement” affixed, a part of the generic word “management” which does not distinguish the disputed domain name from the mark. Previous UDRP panels have consistently found that the addition of a generic word to a mark does not prevent a domain name from being identical or confusingly similar to a mark. Moreover, this addition reinforces the initial interest confusion created by the use of the mark FXCM in the domain name. The fact that there is an ‘m’ missing so that it is essentially a misspelling of “FXCM management”, is not obvious and is aimed at taking advantage of users who may misspell in the same way when looking for Complainant’s services. The overall impression of the disputed domain name is still of association with Complainant as the mark FXCM is a clear and dominant component of the disputed domain name.

Respondent lacks any rights or legitimate interests in the disputed domain name. (See Complainant`s detailed contentions on this subject in section 6.B. below.)


At the date of registration of the disputed domain name Complainant had been established for 15 years and was well known, as evidenced in Annex A to the Complaint. Referring to paragraph 2 of the Policy, Respondent is in breach of their representations that their registration will not infringe upon a third party’s rights, that they are not registering the disputed domain name for an unlawful purpose and will not use the domain name in violation of any applicable laws or regulations. This responsibility lies solely with Respondent and therefore Respondent should have made the necessary checks for third party rights. An online search for Complainant’s mark FXCM would have revealed Complainant’s interest in the disputed domain name and made Respondent aware of Complainant’s intellectual property rights.
Complainant has had limited information from which to investigate Respondent’s true identity but believes that it is likely that Respondent has other infringing or potentially infringing domain names, as at least two of the domain names which they are associated with correspond to other forex providers:


Domain Name

Corresponding Trademark

Registration Number

Registration Date

Country of Trademark

fxtoptech.com

FXTOP (combined)

3887027

08-01-2002

FR

valtechfx.com

VALTECH

000883538

09-03-2000

IN

This coupled with the use of the domain names in Respondent’s portfolio would suggest that it is accustomed to registering domain names which take advantage of third party’s rights in order to lure Internet users to their own clone websites. Respondent produces these websites in such a manner that the speculative user looking for Complainant’s services would be fooled into thinking that they are in fact genuine websites.


Complainant’s allegations about Respondent’s bad faith are reinforced by the false WhoIs information supplied in order to afford “a cloak of anonymity”. Respondent’s use of the alias “John Doe” when registering the disputed domain name is a blatant attempt to avoid their true identity from being discovered given their fraudulent activities carried out in connection with the disputed domain name, behavior noted in Telstra Corporation v. Nuclear Marshmallows, WIPO Case No. D2000-0003 as clear evidence of bad faith: The deceptive nature of the entire modus operandi of a registrant supplying false information to hide his identity is itself evidence of bad faith”.
A look at the Respondent’s other domain names, registered using its email address, shows that they are in fact all registered using false information (Annex E to the Complaint) as they state that the registrant is “Company” apart from one domain name which shows information for an Lvan Vinkovskiy who Complainant believes is Respondent’s preferred website developer. These multiple registrations using inaccurate information show a clear intention to use the disputed domain name to deceive and potentially to commit fraud at the time of registration, hence the use of the alias John Doe for the WhoIs information.
Complainant fears that should Respondent retain control of the disputed domain name there is nothing to restrict Respondent from making use of the disputed domain name in this manner, as proven by the fact that this is how Respondent was previously using the disputed domain name since its registration. Finally, Complainant alleges that the change of use of the disputed domain name so that it no longer resolves to a website was for no other reason than to escape the Policy as Respondent was afraid of repercussions. However, the non-use of a domain name is still within the Policy as “…the concept of a domain name ‘being used in bad faith’ is not limited to positive action; inaction is within the concept.” (see Telstra Corporation v. Nuclear Marshmallows, WIPO Case No. D2000-0003). Given the other factors present regarding Respondent’s behavior and intentions there is a clear case for a finding of bad faith registration and use.

B. Respondent

Respondent did not reply to Complainant’s contentions.




6. Discussion and Findings




A. Identical or Confusingly Similar

Complainant has shown that it owns trademark rights in the FXCM mark. See section 4 above.


The Panel notes that the disputed domain name consists of the FXCM mark plus the term “anagement”, which together with the “m” letter in Complainant’s mark forms the word “management”. Thus, the disputed domain name incorporates Complainant`s mark in its entirety, just adding a generic term and the gTLD “.com”. It is well established that such additions are inapt to distinguish a domain name from a mark. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 1.2. Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark.

B. Rights or Legitimate Interests

Complainant contends that Respondent has registered and is making use of the disputed domain name with mal intent. Complainant has never had dealings or an affiliation with Respondent. Complainant never granted Respondent a license or permission for the use of Complainant’s mark within the disputed domain name, or for any other purpose. Complainant has not been able to locate any trademarks for FXCM registered in favor of Respondent, which leads Complainant to the presumption that Respondent does not have any registered trademarks.


Complainant states that according to the WhoIs information for the disputed domain name the registrant is a “John Doe” with a South African address. An online search for the address used shows that it is not a valid address and has only been used on the WhoIs information for the disputed domain name. Complainant avers that this is evidence that Respondent has used false WhoIs information and thus it is not possible to conclusively discern the true identity of Respondent based on the WhoIs information provided to the Registrar.
Complainant further states that Respondent had intentionally used the confusion of Complainant’s association with the disputed domain name to attract Internet users and then reinforce the association via the content of the website as a forex website. Complainant adds that the homepage of the website at the disputed domain name showed a logo stating, “FXCM money management discover your potential”, with the FXCM element emphasized using a much larger and stylized font, with the website also stating that it has had 36,045,042 trades since it opened on January 1, 2012. These elements have clearly been added to lure Internet users into believing that the website has been trading for longer than Respondent has held the registration of the disputed domain name and accordingly to the assumption that it is a genuine and trustworthy website. Complainant also states that whereas on Complainant’s website there is a section called “Safety of Funds” which contains information about the regulation applicable to Complainant and confirming that they are registered with the FCA, this section on Respondent’s website fails to provide such regulation information, a difference which customers would not necessarily notice.
Complainant also contends that the true underlying registrant of the disputed domain name is FXCManagement Ltd, a company incorporated on October 27, 2014, after the registration of the disputed domain name, for the purposes of circumventing the Policy. This company was highlighted by the Financial Services and Markets Authority of Belgium in a statement on July 2, 2015 as being an unauthorized investment firm or credit institution in Belgium (see Annex F to the Complaint). Online searches by Complainant have revealed that FXCManagement Ltd have approached customers posing as a foreign subsidiary of Complainant’s business and have taken as much as 42,000 Euros from them (see Annex F to the Complaint). When contacting unsuspecting customers Respondent has used email addresses associated with the disputed domain name in order to reinforce the association and such use is not only a risk to Complainant, but also a real danger to Complainant’s customers, its brand and its reputation.
Via online searches, Complainant has established that though Respondent’s company name is “FXCManagement Ltd”, Respondent is not known as “fxcmanagement” or “fxcm management”.
Whilst the use of the disputed domain name appears to be for a legitimate forex business, Complainant contends that this does not in fact create a legitimate interest for Respondent in the disputed domain name. Such use of the disputed domain name is intended simply to exploit the confusion arising from the use of the FXCM mark in order to commercially benefit Respondent to the detriment of Complainant, a use which does not create a bona fide offering of goods or services, or a legitimate noncommercial or fair use under paragraphs 4(c)(i) or (iii) of the Policy (see Paddy Power PLC v. Oded Keinan, Winning Partner Traffic Label Limited, WIPO Case No. D2014-1192).
Lastly, Complainant says that although Respondent has changed the use of the disputed domain name and now it does not resolve to a website, this does not alter Complainant’s contentions regarding a lack of right or legitimate interest in the disputed domain name. Instead, Complainant believes that the change of use occurred either because Respondent became aware of Complainant’s investigations through tracking the visitors on their website, or it removed the website due to the growing number of warnings online regarding the same.
In the Panel’s opinion these contentions of Complainant together with the existing evidence are apt to constitute a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name for various reasons.
First, the Whois information for the disputed domain name shows that Respondent is “John Doe”. “John Doe” is a placeholder name, which typically refers to someone or something whose name is temporarily forgotten, irrelevant, or unknown. Thus, “John Doe”, the registrant of the disputed domain name at the time of registration apparently could not be known and was not known – commonly or otherwise – by the disputed domain name, which excludes the applicability of paragraph 4(c)(ii) of the Policy in these circumstances. Incidentally, the Panel notes that there is no evidence on the record that Respondent owns a trademark corresponding to the disputed domain name.
Second, Complainant shows that FXCManagement Ltd, the company operating the “www.fxcmanagement.com” website, was incorporated after the registration of the disputed domain name, and provided evidence of use of the disputed domain name to confuse investors into believing it was the Complainant.
Third, the FSMA, the Belgian regulatory body of forex trading, has warned the public against this company’s fraudulent activities such as cloning related companies. See the FSMA press release at section 4 above.
Respondent’s complete failure to explain this conduct, as well as its concealing its true identity and providing false contact details, lead the Panel to conclude, in a balance of probabilities, that Respondent’s use of the disputed domain name was not made in connection with a bona fide offering of services pursuant to paragraph 4(c)(i) of the Policy.
The Panel shares the views of previous UDRP panels finding that no rights or legitimate interests can be derived from a scheme of company cloning on a website at a domain name incorporating the complainant’s mark, and where the corresponding regulatory authority had warned investors against such fraudulent practices. See MKP Capital Management LLC, MKP Capital Europe LLP v. Juri Morgan/ Identity Protection Service Limited, WIPO Case No. D2013-1415. See also Alceda Fund Management S.A. v. Michael Orden (SROW 1660081), WIPO Case No. D2011-1542 (“According to information received by the Complainant from the FSA of the United Kingdom, it appears that the Respondent was attempting to “clone” the Complainant’s business, thereby luring the Complainant’s potential customers to his own website for commercial gain. Such use cannot be considered a bona fide offering of goods or services under the Policy. Likewise, the Respondent’s activities cannot be said to constitute a legitimate noncommercial or fair use of the disputed domain name. The Respondent does not appear to be known by the disputed domain name or a name corresponding to the disputed domain name. According to the WhoIs records for the disputed domain name, the Respondent appears to be a natural individual by the name of “Michael Orden.”).
Based on the available evidence the Panel concludes that, Respondent’s use of the disputed domain name as described is neither a fair nor a legitimate or noncommercial use without intent for commercial gain to misleadingly divert consumers or to tarnish the FXCM mark, pursuant to paragraph 4(c)(iii) of the Policy.

Furthermore, Respondent’s failure to submit any explanation in this proceeding, either for its registration of the disputed domain name, or to claim at least some right or legitimate interest, as well as Respondent’s concealing its true identity and providing false contacts details, all strongly suggest that Respondent lacks any rights or legitimate interests in the disputed domain name.


The Panel concludes that Complainant has made out its case under the second element of the Policy.

C. Registered and Used in Bad Faith

The Panel notes that Complainant’s trademark registrations for FXCM in various jurisdictions predate the registrations of the disputed domain name by several years. Further, Complainant has shown that it is a leading broker in the forex market that operates, inter alia, the “www.fxcm.com” website, and that has offices, partners and affiliates in the main financial centers of the world. Also, Complainant has shown that in a previous usage of Respondent’s website at the disputed domain name there appeared a logo stating, “FXCM money management discover your potential” with the “FXCM” element emphasized. In the Panel’s opinion these facts show that Respondent knew of, and targeted, Complainant, its FXCM mark and trading services offered thereunder at the time of registering the disputed domain name, which in the circumstances of this case suggests that the registration of the disputed domain name was in bad faith.


The Panel believes that Respondent’s use of the website at the disputed domain name as described in section 6.B above strongly indicates that the disputed domain name was chosen and used as a clone of Complainant’s website to create among Internet users, including Complainant’s customers, the false impression that the “www.fxcmanagement.com” website is authorized by or, at least, related to Complainant, a fraudulent behavior that was the subject of a warning by the authority supervising forex trading in Belgium. By using the disputed domain name in such a manner Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with Complainant’s FXCM mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website, which is a circumstance of registration and use in bad faith of the disputed domain name under paragraph 4(b)(iv) of the Policy.
The fact that Respondent provided blatantly false contact details at the time of registering the disputed domain name and its complete failure to explain its conduct confirm an overall impression of Respondent’s mala fides.

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 disputed domain name, , be transferred to the Complainant.

Roberto Bianchi

Sole Panelist



Date: September 11, 2015

1 The FSMA press release is available at http://www.fsma.be/~/media/files/fsmafiles/press/warnfsma/2015/en/2015-07-02_fxcmmanagement.ashx?la=en



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