TF Global Markets (Aust) Limited v. 張 明 / 陳 明
Claim Number: FA2101001929496
Complainant is TF Global Markets (Aust) Limited (“Complainant”), represented by Daniel Greenberg of Lexsynergy Limited, International. Respondent is 張 明 / 陳 明 (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <thinkstoreforex.com> and <thinkmarket-forex.com>, both of which are registered with Name.Com, Inc.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 25, 2021; the Forum received payment on January 25, 2021.
On January 25, 2021, Name.Com, Inc. confirmed by e-mail to the Forum that the <thinkstoreforex.com> and <thinkmarket-forex.com> domain names are registered with Name.Com, Inc. and that Respondent is the current registrant of the names. Name.Com, Inc. has verified that Respondent is bound by the Name.Com, Inc. 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 January 27, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 16, 2021 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@thinkstoreforex.com, postmaster@thinkmarket-forex.com. Also, on January 27, 2021, the 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 February 22, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a foreign exchange liquidity provider, offering online trading platforms, trading tools, and educational and newsworthy information to online traders via its official website.
Complainant holds a registration for the trademark THINKFOREX, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 4,750,961, registered as of June 9, 2015, and likewise for the service mark THINKMARKETS, which is on file with the USPTO as Registry No. 5,459,296, registered May 1, 2018.
Complainant also has rights in the THINKFOREX and THINKMARKETS marks under the common law.
Respondent registered the domain names <thinkstoreforex.com> and <thinkmarket-forex.com> on August 26, 2020.
The domain names are confusingly similar to Complainant’s THINKFOREX and THINKMARKETS marks.
Respondent has not been commonly known by the domain names.
Respondent has not been licensed or otherwise authorized by Complainant to use Complainant’s marks.
Respondent’s use of the domain names is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use.
Respondent has no rights to or legitimate interests in the domain names.
Respondent’s use of the domain names disrupts Complainant’s business.
Respondent both registered and now uses the domain names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Preliminary Issue: Multiple Respondents
Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Complainant alleges that the entities controlling the domain names at issue are the same person or entity, which is operating under several aliases. Complainant therefore requests that both domain name registrants be treated in this proceeding for all purposes as a single Respondent. In support of this request, Complainant asserts the following:
(1) both domain names contain the word “think;”
(2) both domain names address the topic of foreign exchange;
(3) both were registered on the same day;
(4) each of the e-mail addresses used to register the domain names begins with the same prefix: “merry2020;”
(5) both of those e-mail addresses are listed as tied to Gmail accounts;
(6) both of those e-mail addresses use the same e-mail server;
(7) the registrants for the two domain names share the same postal code: “010000;”
(8) the registrants for both domain names have the same telephone dialing code: “+855” for Cambodia, and the same country code: “CN” for China; and
(9) the registrants for both domain names are listed as having the same surname;
Because it appears from the asserted facts, none of which Respondent denies, that they cannot be explained by reference to mere coincidence, the Panel determines that the request must be granted. Accordingly, this Decision will refer to the pair of identified respondents throughout as a single Respondent.
(1) the domain names registered by Respondent are confusingly similar to a trademark and a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of either of the domain names; and
(3) the same domain names were been registered and are being used by Respondent in bad faith.
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:
i. the domain name registered by Respondent 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 domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable claims and inferences set out in the Complaint unless the supporting evidence is manifestly contradictory. See, for example, Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). But see 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”).
Complainant has rights in the THINKFOREX trademark and THINKMARKETS service mark sufficient for purposes of Policy ¶ 4(a)(i) by reason of its registration of the marks with a national trademark authority, the USPTO, and this is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here China). See, for example, W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum August 24, 2010):
[T]he Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <thinkstoreforex.com> and <thinkmarket-forex.com> domain names are confusingly similar to Complainant’s trademark THINKFOREX and service mark THINKMARKETS, respectively. The domain names incorporate the marks in their entirety, with only the insertion of the generic term “store” in the first of them and of a hyphen and the term “forex” in the second, each inserted term relating to either an aspect or the whole of Complainant’s business, plus, for both, the generic Top Level Domain (“.com”). These alterations of the marks, made in forming the domain names, do not save them from the realm of confusing similarity under the standards of the Policy. See, for example, Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding that adding to a mark a gTLD and the generic term “finance,” which described a UDRP complainant’s financial services business conducted under that mark, did not sufficiently distinguish the resulting domain name from the mark under Policy ¶ 4(a)(i)). See also Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Forum September 27, 2002):
[I]t is a well-established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.
This is because every domain name requires a gTLD or other TLD.
And, as to Respondent’s insertion of a hyphen in the <thinkmarket-forex.com> domain name, that alteration of the mark is of no consequence to our analysis. This is because a hyphen adds nothing of substance to the meaning, nor does it change the phonetic character, of the result.
Under Policy ¶ 4(a)(ii), Complainant must make out a prima facie showing that Respondent lacks rights to and legitimate interests in the <thinkmarket-forex.com> and <thinkstoreforex.com> domain names, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain names. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c)(i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain names that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the challenged <thinkstoreforex.com> and <thinkmarket-forex.com> domain names, and that Complainant has not licensed or otherwise authorized Respondent to use the THINKFOREX and THINKMARKETS marks. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “張 明 / 陳 明,” which may be rendered in English as “Zhang Ming / Chen Ming,” and which are capable of several meanings, none of which resembles either of the domain names. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See, for example, Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum September 4, 2018) (concluding that a respondent was not commonly known by a disputed domain name incorporating the GOOGLE mark where the relevant WHOIS record identified that respondent as “Bhawana Chandel,” and nothing in the record showed that that respondent was authorized to use the UDRP Complainant’s mark in any manner).
We next observe that Complainant asserts, without any objection from Respondent, that Respondent uses the contested <thinkstoreforex.com> and <thinkmarket-forex.com> domain names to pass itself off as Complainant online in order to facilitate the conduct of a fraudulent “phishing” scheme and to profit from the operation of that scheme. This employment is neither a bona fide offering of goods or services by means of the domain name under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of it under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy. See, for example, Microsoft Corporation v. Terrence Green / Whois Agent, FA 1661030 (Forum April 4, 2016) (finding that a respondent’s use of domain names that were confusingly similar to the mark of a UDRP complainant to send fraudulent emails purporting to be from agents of that complainant to be neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii)).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the uncontested evidence that Respondent employs the <thinkstoreforex.com> and <thinkmarket-forex.com> domain names to pass itself off as Complainant online in order to facilitate the conduct of a fraudulent “phishing” scheme and to profit from the operation of that scheme. This behavior demonstrates Respondent’s bad faith in registering and using the domain names. See, for example, Capital One Fin. Corp. & Capital One Bank v. Howel, FA 289304 (Forum August 11, 2004):
The … domain name is confusingly similar to Complainant’s mark, it is being used to redirect Internet users to a website that imitates Complainant’s credit application website, and it is being used to fraud[ul]ently acquire personal information from Complainant’s clients. Respondent’s use of the domain name supports findings of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).
It is also clear from the evidence that Respondent knew of Complainant and its rights in the THINKFOREX and THINKMARKETS marks when it registered the <thinkstoreforex.com> and <thinkmarket-forex.com> domain names. This further illustrates Respondent’s bad faith in registering them. See, for example, iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum January 1, 2018):
Respondent’s prior knowledge [of a UDRP complainant’s mark, and, therefore, its bad faith in registering a confusingly similar domain name] is evident … from Respondent’s use of its trademark[-]laden domain name….
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <thinkstoreforex.com> and <thinkmarket-forex.com> domain names be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: February 24, 2021
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