FIBO Consulting, Ltd v. Whois Privacy Corp. et al.
Claim Number: FA1802001772404
Complainant: FIBO Consulting, Ltd of Nicosia, Cyprus.
Complainant Representative: Vladimir Marusiy of Nicosia, Cyprus.
Respondent: Whois Privacy Corp. of Nassau, International, BS.
REGISTRIES and REGISTRARS
Registries: Registry Services Corporation
Registrars: Internet Domain Service BS Corp
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 Examiner in this proceeding.
Terry F. Peppard as Examiner.
Complainant submitted: February 19, 2018
Commencement: February 19, 2018
Default Date: March 6, 2018
On review of the pertinent 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") to provide Respondent notice of the commencement of this proceeding and an opportunity to defend against the allegations of the Complaint.
Complainant requests that the domain names be suspended for the life of their registrations.
Clear and convincing evidence.
Notwithstanding that Respondent has defaulted, URS Procedure 1.2.6 requires Complainant to make out a prima facie case, proven by clear and convincing evidence, for each of the following three elements in order to obtain a determination that a domain name should be suspended:
i. that the registered domain name is identical or confusingly similar to a word mark for which the Complainant holds a valid national or regional registration and that is in current use;
ii. that the registrant (Respondent) has no legitimate right to or interest in the domain name; and
iii. that the domain name was registered or is being used by the registrant (Respondent) in bad faith.
In its Complaint, Complainant shows that it holds a valid registration for the trademark FIBOGROUP, which is on file with the World Intellectual Property Organization (“WIPO”) as Registry No. 1,303,697, registered March 24, 2016, in International Class 035 [on-line promotion of computer networks and websites, etc.], International Class 036 [financial and monetary services, etc.] and International Class 041 [education and instruction, etc.], and that the same mark is in current use. Respondent does not dispute any of this. Complainant also shows that Respondent holds registrations for the several contested domain names, and, again, Respondent does not deny this.
IDENTITY OR CONFUSING SIMILARITY
We first consider the requirement of the URS Procedure that, in order to prevail on its Complaint, Complainant must demonstrate that each of the challenged domain names (<atiora.pro>, <binarium.pro>, <freedom-finance.pro>, <freshforex.pro>, <fx-pro.pro>, <instaforex.pro>, <nas-broker.pro>, <trade-24.pro>, <treid12.pro> and <turboforex.pro>) is confusingly similar to its FIBOGROUP mark. However, none of the domain names contains the mark in whole or in material part. It therefore cannot be concluded that any of them is confusingly similar to the mark. Accordingly, we find that Complainant has failed to meet the first of its obligations of proof under the Procedure.
Because this is so, and because Complainant is obliged by the Procedure to demonstrate adequate proof of all three of the elements outlined above in order to succeed on its Complaint, it is unnecessary for us to consider Complainant’s assertions on the points of Respondent’s rights to or interests in the disputed domain names and whether Respondent registered or has since used any of those domain names in bad faith.
We note in passing that Complainant cites to an earlier National Arbitration Forum proceeding to which Complainant and Respondent were parties (FIBO Consulting LTD v. Domain Admin / Whois Privacy, FA 1772404 (Nat. Arb. Forum January 18, 2018)), arguing that the decision favorable to it there demonstrates that it should likewise prevail here. But the Complaint here fails to acknowledge that the domain name at issue in the prior proceeding was <fibo-forex.net>, which the presiding examiner specifically found to be confusingly similar to Complainant’s FIBOGROUP mark. This difference between the two cases is critical to the outcome here.
We find from a review of the record that the Complaint was not brought in an abuse of this proceeding and that it does not contain any material falsehoods.
Upon consideration of the Complaint and its supporting submissions, we find and conclude that Complainant has failed to prove all required elements of the URS Procedure to a standard of clear and convincing evidence. Accordingly, it is hereby ORDERED that the domain names <atiora.pro>, <binarium.pro>, <freedom-finance.pro>, <freshforex.pro>, <fx-pro.pro>, <instaforex.pro>, <nas-broker.pro>, <trade-24.pro>, <treid12.pro> and <turboforex.pro> be RETURNED to the control of Respondent.
Terry F. Peppard, Examiner
Dated: March 06, 2018
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