DECISION

 

TF Global Markets (Aust) Pty Ltd. v. He Li Xian

Claim Number: FA1911001871622

 

PARTIES

Complainant is TF Global Markets (Aust) Pty Ltd (“Complainant”), represented by Daniel Greenberg of Lexsynergy Limited, London, United Kingdom. Respondent is He Li Xian (“Respondent”), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <thinkmarketsfx.com>, registered with Alibaba Cloud Computing (Beijing) Co., Ltd.

 

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.

 

John J. Upchurch as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on November 18, 2019; the Forum received payment on November 18, 2019.

 

On November 19, 2019, Alibaba Cloud Computing (Beijing) Co., Ltd. confirmed by e-mail to the Forum that the <thinkmarketsfx.com> domain name is registered with Alibaba Cloud Computing (Beijing) Co., Ltd. and that Respondent is the current registrant of the name. Alibaba Cloud Computing (Beijing) Co., Ltd. has verified that Respondent is bound by the Alibaba Cloud Computing (Beijing) Co., Ltd. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

 

On November 20, 2019, the Forum served the Complaint and all Annexes, including a Chinese Written Notice of the Complaint, setting a deadline of December 10, 2019 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@thinkmarketsfx.com.  Also on November 20, 2019, the Chinese Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.

 

Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.

 

On December 16, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.

 

Preliminary Issue: Language of Proceedings

The Panel notes that the Registration Agreement is written in Chinese, thereby making the language of the proceedings in Chinese. After review of the applicable rules on language of the proceedings under the UDRP, and pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

Complainant

1.    Complainant, TF Global Markets (Aust) Pty Ltd, is a foreign exchange and online brokerage based in Australia. Complainant has rights in the THINKMARKETS mark through its trademark registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,459,296; registered May 1, 2018) and trademark registrations in other countries. See Compl. Annex 1. Respondent’s <thinkmarketsfx.com> domain name is confusingly similar to Complainant’s THINKMARKETS mark as it incorporates the mark in its entirety, merely adding the letters “f” and “x” and a “.com” generic top-level domain (“gTLD”).

2.    Respondent has no rights or legitimate interests in the <thinkmarketsfx.com> domain name. Respondent is not authorized or licensed to use Complainant’s THINKMARKETS mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the disputed domain name resolves to a website impersonating Complainant and Complainant’s competitor. Furthermore, Respondent appears to be conducting a phishing scheme.

3.    Respondent registered and uses the <thinkmarketsfx.com> domain name in bad faith. Respondent attempts create a likelihood of confusion with the Complainant's mark as to the source, sponsorship, or endorsement of Complainant's affiliation with the disputed domain name. Specifically, the <thinkmarketsfx.com> domain name resolves to a website that impersonates Complainant’s legitimate website, within which Respondent further attempts to engage in phishing for Internet users’ personal and financial information. Finally, Respondent failed to respond to Complainant’s cease and desist letters. See Compl. Annex 13&14.

 

Respondent

1.    Respondent failed to submit a Response.

 

FINDINGS

1.    Respondent’s <thinkmarketsfx.com> domain name is confusingly similar to Complainant’s THINKMARKETS mark.

2.    Respondent does not have any rights or legitimate interests in the <thinkmarketsfx.com> domain name.

3.    Respondent registered or used the <thinkmarketsfx.com> domain name in bad faith.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."

 

Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

 

(1)  the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(2)  Respondent has no rights or legitimate interests in respect of the domain name; and

(3)  the domain name has been registered and is being used in bad faith.

 

In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.  The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).

 

Identical and/or Confusingly Similar

Complainant claims rights in the THINKMARKETS mark based upon registration of the mark with the USPTO (e.g., Reg. No. 5,459,296; registered May 1, 2018). See Amend. Compl. Annex 1. Registration of a mark with the USPTO is sufficient to establish rights in that mark. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark). The Panel therefore holds that Complainant’s registration of the THINKMARKETS mark with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4(a)(i).  The <thinkmarketsfx.com> domain name was registered on December 5, 2008.

 

Complainant argues Respondent’s <thinkmarketsfx.com> domain name is confusingly similar to the THINKMARKETS mark, as the name incorporates the mark in its entirety and includes the letters “f” and “x” (“fx” indicates “foreign exchange”, a descriptive term that describes services in connection with the Complainant’s mark), and a “.com” gTLD. Such changes are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See Marquette Golf Club v. Al Perkins, FA 1738263 (Forum July 27, 2017) (“When a respondent’s domain name incorporates a mark in its entirety and merely adds a generic top-level domain (gTLD), “.com”, then the Panel may find that the disputed domain name is identical to Complainant’s mark.”); see also The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) (“[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i).”). The Panel therefore determines the <thinkmarketsfx.com> domain name is confusingly similar to the THINKMARKETS mark per Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).

 

Complainant argues that Respondent has no rights or legitimate interests in the <thinkmarketsfx.com> domain name, as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the THINKMARKETS mark in any way. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.). Additionally, lack of authorization to use a complainant’s mark may demonstrate the respondent is not commonly known by the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The WHOIS information of record identifies the registrant of the at-issue domain name as “He Li Xian,” and no information on the record indicates Respondent was authorized to register a domain name incorporating Complainant’s THINKMARKETS mark. See Compl. Annex 12. The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the <thinkmarketsfx.com> domain name.

 

Complainant also argues Respondent’s lack of rights or legitimate interests in the <thinkmarketsfx.com> domain name is demonstrated by its failure to use the name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Complainant contends instead that the name resolves to a website which was used to impersonate Complainant and was then used to impersonate a competitor of Complainant. Complainant also contends that Respondent is engaging in phishing by encouraging Internet users to trade assets through its online brokerage website. Use of a domain name to pass itself off as the complainant in furtherance of a phishing scheme is not a use indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Kmart of Mich., Inc. v. Cone, FA 655014 (Forum Apr. 25, 2006) (The panel found the respondent’s attempt to pass itself of as the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii) when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website); see also DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”). Complainant contends as of March 12, 2019, the disputed domain name resolved to a Chinese version of Complainant’s website (use of, inter alia, Complainant’s logo, trading license numbers, and trademark). See Amend. Compl. Annex 12A. Complainant contends that on March 13, 2019, the website at the disputed domain name was taken down in response to a request from Complainant’s representative. Sometime beginning in July 2019 the disputed domain name resolved to website that impersonates of one of Complainant’s competitors. Again in July 2019, the website at the disputed domain name was taken down in response to a request from Complainant’s representative. See Amend. Compl. Annexure 14. The Panel therefore finds that Respondent does not have rights or legitimate interest in the <thinkmarketsfx.com> domain name under Policy ¶¶ 4(c)(i) and (iii).

 

Registration and Use in Bad Faith

Complainant contends that Respondent’s bad faith is indicated by its registration and use of the <thinkmarketfx.com> domain name to pass itself off as Complainant. Passing off in order to mislead users into mistakenly believing that the disputed domain name is authorized, operated, or owned by complainant can demonstrate a respondent’s bad faith per Policy ¶¶ 4(b)(iii) or (iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum December 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding bad faith per Policy ¶¶ 4(b)(iii) and (iv) where the respondent used the disputed domain name to resolve to a website upon which the respondent passes off as the complainant and offers online cryptocurrency services in direct competition with the complainant’s business). Complainant contends that Respondent used the disputed domain name to resolve to a website that was a Chinese version of Complainant’s website. See Amend. Compl. Annexures 12A, 14. The Panel therefore finds that Respondent has registered and used the domain name in bad faith per Policy ¶¶ 4(b)(iii) or (iv).

 

Complainant further contends that Respondent registered and used the <thinkmarketsfx.com> domain name in bad faith because it attempted to engage in a phishing scheme. Use of a disputed domain name to capture personal and financial information from Internet users can demonstrate a respondent’s bad faith per Policy ¶ 4(a)(iii). See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1506001622862 (Forum Aug. 10, 2015) (finding that the respondent’s apparent use of the disputed domain name in furtherance of a ‘phishing’ scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)). Complainant contends that the Respondent’s use of copycat websites, mimicking both Complainant’s website and Complainant’s competitor’s website, was an attempt to attract users to its financial services website and gain access to users’ personal and financial information. The Panel agrees and finds Respondent registered and used the <thinkmarketsfx.com> domain name in bad faith under Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <thinkmarketsfx.com> domain name be TRANSFERRED from Respondent to Complainant.

 

John J. Upchurch, Panelist

Dated:  December 30, 2019