Forex Capital Markets LLC v. zechuan chang
Claim Number: FA1509001636250
Complainant: Forex Capital Markets LLC of New York, New York, United States of America.
Complainant Representative: Jeevan Jdali
Complainant Representative: Safenames Ltd of Milton Keynes, United Kingdom.
Respondent: zechuan chang of luo yang shi, ha, International, CN.
REGISTRIES and REGISTRARS
Registries: Jiangsu Bangning Science & Technology Co., Ltd.
Registrars: Chengdu West Dimension Digital Technology Co., Ltd.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Examiner in this proceeding.
Omar Haydar, as Examiner.
Complainant submitted: September 3, 2015
Commencement: September 8, 2015
Default Date: September 23, 2015
Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules") .
Complainant requests that the domain name be suspended for the life of the registration.
Clear and convincing evidence.
The complaint and findings relate to one domain < fxcm.top >. There is one Complainant and one (or more) Respondent, and no domain names were dismissed from this complaint.
The Respondent has registered the domain name < fxcm.top > on or about November 17, 2014. Complainant has further provided evidence of dozens of other similar infringing domain name registrations by Respondent, including other common trademarked names such as astonmartin.top, boeing.top, Chrysler.top, coca-cola.top, dairyqueen.top, dreamworks.top, goldmansachs.top, Instagram.top, Lamborghini.top, loreal.top, Mercedes-benz.top, morganstanley.top, nvidia.top, office365.top, pixar.top, qualcomm.top, sothebys.top, unilever.top, warnerbros.top, etc. A visit to the domain name in question and one of the other domains as at the date of this determination showed the domains were used for pay per click third party links seemingly related to the trademarked entity but clearly not affiliated, with a sales offer on top for the respective domain.
Complainant, Forex Capital Markets LLC, is the owner of trademark fxcm, registered in 2002 and later in the US and other jurisdictions. Further, Complainant registered and has operated the website <fxcm.com> since 2002 as a financial services website, which Examiner has confirmed is currently in use as at the date of this determination.
Complainant has claimed that the domain name in question is identical to their protected word or mark.
Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended:
1. The registered domain name(s) is/are identical or confusingly similar to a word or mark for which the Complainant holds a valid national or regional registration and that is in current use.
2. Respondent has no legitimate right or interest to the domain name.
3. The domain name(s) was/were registered and are being used in bad faith.
The Examiner finds that Complainant has proven that the domain name is identical through evidence of the trademark registration. The Complainant’s trademark is an established mark, in use for at least thirteen years with use and recognition as a platform for financial services, namely foreign currency exchange. The domain name is not alternatively known or used as a common term or as a word that has usage outside the trademarked entity.
The Examiner further finds that Complainant has proven that Respondent has no legitimate right or interest to the domain name. The Complainant has no business with the Respondent, and has not authorized or licensed Respondent for the use of the protected mark. Additionally, the Respondent has not made any claim to a legitimate right or interest to the name, whether by responding to this Complaint or vis-a-vis the content of their website as indicated above.
The Examiner finds that the evidence proves the domain names were registered and are being used in bad faith. The Examiner finds the use of the trademarked term, which is not a common term, in the domain name as sufficient evidence of bad faith. The domain gives an automatic inference of affiliation to the entity holding the trademark, and would cause confusion amongst internet users into an assumption of an affiliation or relationship. (See Treeforms.com FA0010000095856) Additionally, the plethora of likely similarly infringing registrations by the Respondent only serves to reinforce the notion of bad faith. It would be extremely unlikely that Respondent has proper authorization or license to use all those trademarked names, especially considering the circumstances here. Finally, the offering of the domain name for sale, while not necessarily a sufficient stand alone basis to prove bad faith, clearly and convincingly cements the bad faith intent of the Respondent when considered with the other circumstances mentioned above.
After reviewing the Complainant’s submissions, the Examiner determines that the Complainant has demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain names be SUSPENDED for the duration of the registration.
<fxcm.top>
Omar Haydar, Examiner
Dated: September 28, 2015
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