Exness Holding (CY) Limited v. Vu Nguyen
Claim Number: FA2304002041724
Complainant is Exness Holding (CY) Limited (“Complainant”), represented by Robert Eder, Cyprus. Respondent is Vu Nguyen (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <exness.com.de>, registered with Cloudflare, Inc..
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Steven M. Levy, Esq. as Panelist.
Complainant participated in the mandatory CentralNic Mediation, and the mediation process was terminated.
Complainant submitted a Complaint to Forum electronically on April 26, 2023; Forum received payment on April 26, 2023.
On April 27, 2023, Cloudflare, Inc. confirmed by e-mail to Forum that the <exness.com.de> domain name is registered with Cloudflare, Inc. and that Respondent is the current registrant of the name. Cloudflare, Inc. has verified that Respondent is bound by the Cloudflare, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the CentralNic Dispute Resolution Policy (the “Policy”).
On April 28, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 18, 2023 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@exness.com.de. Also on April 28, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On May 24, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Steven M. Levy, Esq. as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that Forum has discharged its responsibility under Paragraph 2(a) of the Rules for CDRP 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 CDRP Policy, CDRP Rules, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant, Exness Holding (CY) Limited offers insurance, finance, banking, and brokerage services. Complainant asserts rights in the trademark EXNESS based upon registration with the World Intellectual Property Organization (“WIPO”) (e.g., Reg. no. 1,133,115, registered September 12, 2012). Respondent’s <exness.com.de> is confusingly similar to Complainant’s EXNESS trademark because it incorporates the mark in its entirety and adds the “.com.de” geographic term or second top level domain name (“sTLD”).
Respondent does not have rights or legitimate interests in the <exness.com.de> domain name. Respondent is not licensed or authorized to use Complainant’s EXNESS mark and is not commonly known by the disputed domain name. Respondent also does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent collects funds in a Ponzi scheme and operates a website for gambling and lotto activity while displaying a link to one of Complainant’s competitors.
Respondent registered or uses the <exness.com.de> domain name in bad faith. Respondent creates a likelihood of confusion by attempting to impersonate Complainant for commercial gain. Respondent hides WHOIS information by using the .de ccTLD and it had actual knowledge of Complainant’s rights in the EXNESS mark.
B. Respondent
Respondent failed to submit a Response in this proceeding although it did submit an email message to the Forum on April 29, 2023 stating, in full, “Hi. This domain is used for testing only, sorry if there are issues with it, deleted website already. Thanks”.
- Complainant has demonstrated its ownership of trademark rights in the term EXNESS and the <exness.com.de> domain name is identical or confusingly similar to the mark;
- Respondent’s name, as reflected in the WHOIS record, and its use of the disputed domain name to display images and information relating to a Philippine lottery as well as monetized links to the websites of Complainant’s competitors does not provide it with any rights or legitimate interests; and
- The above-mentioned use of the <exness.com.de> domain name indicates that Respondent had knowledge of Complainant’s mark and that it registered and used the domain name 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:
(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 or is being used in bad faith.
The CDRP also requires that Complainant have participated in a CentralNic Mediation, and that said mediation must have been terminated prior to the consideration of the Complaint.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the CDRP Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant asserts rights in the EXNESS mark based upon registration with the WIPO. Registration of a mark with the WIPO is considered a valid showing of rights under Policy ¶ 4(a)(i). See Häfele Vietnam LLC v. Cong Hoan, FA 1813668 (Forum Nov. 28, 2018) (“Registration of a mark with the WIPO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i).”) As Complainant has provided evidence of the EXNESS mark’s registration with the WIPO in the form of a copy of various certificates of registration or renewal, the Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Next, Complainant argues that the <exness.com.de> domain name is confusingly similar to Complainant’s EXNESS trademark. The addition of a geographic term and TLDs are most often irrelevant to a Policy ¶ 4(a)(i) analysis. See Gannett Co. v. Chan, D2004-0117 (WIPO Apr. 8, 2004) (“…it is well established that a domain name consisting of a well-known mark, combined with a geographically descriptive term or phrase, is confusingly similar to the mark.”); see also Metro-Goldwyn-Mayer Studios Inc. v. Antigua Domains, FA 1073020 (Forum Oct. 17, 2007) (“the inclusion of the generic top-level domain ‘.com’ is inconsequential to the Policy ¶ 4(a)(i) analysis, as a top-level domain is required of all domain names.”) As the <exness.com.de> domain name consists entirely of the Complainant’s EXNESS mark and a TLD, the Panel finds that it is identical or confusingly similar to the mark under Policy ¶ 4(a)(i).
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). Should it succeed in this effort, the burden then shifts to Respondent to show that 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 does not mention the illustrative examples set out in Policy ¶ 4(c) but it does assert that “[t]he Respondent lacks the legitimate interest to register the disputed domain name”. As such, the Panel will examine the submitted evidence and the arguments set out in the Complaint in reaching its decision on Policy ¶ 4(a)(ii). First, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Educ. Broad. Corp. v. DomainWorks Inc., FA 882172 (Forum Apr. 18, 2007) (concluding that the respondent was not commonly known by the <thirteen.com> domain name based on all evidence in the record, and the respondent did not counter this argument in its response). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”) The WHOIS information for the disputed domain name lists the registrant as “Vu Nguyen” and Respondent does not claim any license or authorization to use the EXNESS mark. On the record before it, the Panel cannot find that Respondent is commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Next, Complainant claims that it “received a report from one of its clients who fell victim to the Respondent; apparently, the Respondent uses the Complainant’s trademark to pursue financial activities in Vietnam. It was reported that the Respondent collects funds in [a] Ponzi scheme and operates a website for gambling and lotto activity”. It also claims that “the Respondent indicates one of the Complainant’s biggest competitors, i.e. XTB (FX & CFD broker) as one of Complainant’s partners via backlinking” on the <exness.com.de> website. Use of a confusingly similar domain name to promote gambling services or monetized links to services that compete directly with a complainant’s business does not constitute 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). See 7-Eleven, Inc. v. GIBB TAY ZHI JIU, FA 2040299 (Forum May. 23, 2023) (finding that Respondent lacked rights and legitimate interests where the disputed domain name “is being used for a misleading website that attempts to pass off as Complainant to promote gambling services, while the others are being used to display competing pay-per-click links.”) Here, although Complainant does not offer a copy or other evidence of the claimed report of Respondent’s Ponzi scheme activities, it does provide a screenshot of the disputed domain name’s resolving webpage which shows images and information relating to the “Philippine Charity Sweepstakes” and “Philippine Charity Lottery Office Grand Lotto” and which displays what appear to be monetized links to various financial services companies including one that Complainant states is a direct competitor. For its part, Respondent has filed no Response and its only submission in this case is an email to the Forum stating “Hi. This domain is used for testing only, sorry if there are issues with it, deleted website already. Thanks”. This statement does not claim nor provide any basis for finding that Respondent has any rights or legitimate interests in the <exness.com.de> domain name. As Complainant has made a prima facie showing which has not been rebutted by Respondent, by a preponderance of the evidence presented, the Panel finds that Respondent does not provide 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) and that there is no other ground upon which to conclude that it possesses any rights or legitimate interests in the disputed domain name.
Complainant argues that Respondent had actual knowledge of Complainant’s rights in the EXNESS mark because Respondent directs Internet users to a website of one of Complainant’s competitor’s and “the Complainant has a strong market position in Vietnam” and “the Complainant’s trademark is highly specific”. Actual knowledge of an asserted mark may be demonstrated by a respondent’s use of the disputed domain name. See Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between the complainant’s mark and the content advertised on the respondent’s website was obvious, the respondent “must have known about the Complainant’s mark when it registered the subject domain name”). Here, although Complainant provides no evidence to support the reputation of its asserted mark or its claimed market position, the Panel notes that Complainant has provided a screenshot of the disputed domain name’s resolving webpage showing images and text relating to a Philippine lottery and displaying links to the website of Complainant’s competitor and others in the fields of banking, insurance, and other financial services. Respondent, in its brief email to the Forum, has not claimed a lack of knowledge and so, based on the evidence before it, the Panel finds it more likely than not that Respondent registered the disputed domain name with prior knowledge of Complainant’s EXNESS mark.
Next, Complainant asserts that Respondent creates a likelihood of confusion by attempting to impersonate Complainant and promote its competitors for commercial gain. Attempts to impersonate or pass oneself off as a complainant and create a likelihood of confusion has been held to evidence bad faith under Policy ¶ 4(b)(iv). See Perot Sys. Corp. v. Perot.net, FA 95312 (Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); see also Russell & Bromley Limited v. Li Wei Wei, FA 1752021 (Forum Nov. 17, 2017) (finding the respondent registered and used the at-issue domain name in bad faith because it used the name to pass off as the complainant and offer for sale competitive goods). Promotion of gambling activities through the use of a confusingly similar domain name has also been held to show bad faith. See Dell Inc. v. gaosun liu / liugaosun, FA 1951189 (Forum July 14, 2021) (finding bad faith where respondent used the domain name at issue “for a Chinese-language website composed of gambling-related advertisements and links, none of which have any apparent connection to the mark or the domain name, presumably for Respondent's commercial gain”). Here, although Complainant provides no evidence to support its claimed report “that the Respondent collects funds in [a] Ponzi scheme” the provided screenshot of the <exness.com.de> webpage does show images and information relating to the “Philippine Charity Sweepstakes” and “Philippine Charity Lottery Office Grand Lotto” and displays what appear to be monetized links to various financial services companies including one that Complainant states is a direct competitor. Based on this evidence, and the fact that Respondent has provided no explanation for its actions other than the unsubstantiated statement that “[t]his domain is used for testing only”, the Panel finds sufficient evidence to conclude that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Finally, Complainant contends that Respondent hides WHOIS information by using the .de ccTLD. Although Policy ¶ 4(b)(v) provides that bad faith registration and use may be found where “you have provided false contact details to [CentralNic]”, Complainant does not submit a copy of the WHOIS record for the disputed domain name or any other evidence to support its claim that “[t]he Respondent uses a .de ccTLD to hide the registrant’s identity”. As such, the Panel declines to make any finding with respect to this contention.
Having established all three elements required under the CDRP Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <exness.com.de> domain name be TRANSFERRED from Respondent to Complainant.
Steven M. Levy, Esq., Panelist
Dated: May 26, 2023
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page