Westmore · UDRP DecisionIronfxglobal.com
The Panel ordered transfer of <ironfxglobal.com>. It found the domain confusingly similar to the Complainant’s IRONFX trademark because it reproduced the mark in full and added the descriptive term “global,” which also appeared in the Complainant’s corporate name. The Respondent lacked rights or legitimate interests because there was no authorization or evidence of bona fide use, and the Respondent did not rebut the Complainant’s prima facie case. Bad faith was found based principally on the domain’s offer for sale for USD 49,800, the evidence concerning the Respondent’s registration of numerous trademark-related domains, the Complainant’s reputation, and the Panel’s conclusion that the Respondent had actual notice of the Complainant’s rights and intended to sell the domain for an amount exceeding documented out-of-pocket costs.
The timeline behind ironfxglobal.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
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The decision illustrates a strong combination-mark case in which the added term did not reduce similarity because it was descriptive and also reproduced part of the Complainant’s corporate identity. The case also shows how a high-priced public sale offer, coupled with prior trademark rights, evidence of numerous trademark-related registrations, and the absence of any respondent explanation, can support a finding under paragraph 4(b)(i).
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Ironfx Global Limited v. Jinsoo Yoon Case No. D2014-2174 1. The Parties The Complainant is Ironfx Global Limited of Limassol, Cyprus, internally represented. The Respondent is Jinsoo Yoon of Daegu, Republic of Korea. 2. The Domain Name and Registrar The disputed domain name <ironfxglobal.com> is registered with NameForward LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 12, 2014. On December 12, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 22, 2014, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”). In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 24, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was January 13, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 14, 2015. The Center appointed Yukukazu Hanamizu as the sole panelist in this matter on January 23, 2015. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background The Complainant is an on-line foreign exchange derivatives service provider duly registered and existing under the laws of Cyprus and is regulated and authorized by the Cyprus Securities and Exchange Commission (CySEC). As a regulated investment firm, the Complainant serves retail and institutional customers from over 180 countries in Europe, Asia, the Middle East, Africa and Latin America and has over 50 offices around the globe, and more than 1,600 employees worldwide providing support in more than 46 different languages. The Complainant has changed its name from “Ironfx Limited” to “Ironfx Global Limited” on September 2, 2013. The Complainant is the proprietor of the International trademark registration for a stylized form of the name “IronFX” in respect of financial affairs in class 36 with registration number 1129032 registered on June 28, 2012 and United States of America trademark IRONFX, in class 36, number 4,362,855 registered on July 9, 2013. The Complainant is also the registered owner of the domain name <ironfx.com> with registration date February 10, 2008. The disputed domain name was registered on December 2, 2014. The website at the disputed domain name redirects to a parking page at “www.domainpower.com”. 5. Parties’ Contentions A. Complainant A.1. Identical or Confusingly Similar The Complainant contends that the disputed domain name is confusingly similar to the Complainant’s domain name and registered trademark phonetically, visually and conceptually because it incorporates the IRONFX mark in its entirety with the addition of the word “global”. The Complainant avers that the addition of the word “global” at the end does not affect the disputed domain name to be recognized as identical or confusingly similar to the Complainant’s trademark and that the word “global” is a highly descriptive and generic term which describes the global resonance and reputation of the Complainant worldwide. The Complainant also contends that it should also be noted that the word “global” is reflected in the Complainant’s name “IronFX Global Ltd”. Consequently, the Complainant argues that it can be fairly inferred that the disputed domain name can inevitably cause confusion to the public as it is closely related to the Complainant’s trademark. As a result, the Complainant contends that the disputed domain name is without doubt confusingly similar to the Complainant’s trademark as per the meaning of paragraph 4(a) (i) of the Policy. A.2. Rights or Legitimate Interests The Complainant contends that the Respondent does not have any rights or legitimate interests in the disputed domain name for the following reasons: 1. The Respondent has never demonstrated any use of the disputed domain name or the Complainant’s trademark name; 2. The Complainant has not authorized, licensed or otherwise consented to the use of the disputed domain name by the Respondent; 3. There is no evidence that the Respondent has any rights or legitimate interests with respect to the disputed domain name as it did not use, or make demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or service known to the Complainant. The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name under paragraph 4(a)(ii) of the Policy. A.3. Registered and Used in Bad Faith The Complainant contends that the Respondent’s offering of the disputed domain name for sale on a parking page at “www.domainpower.com” for the extremely unreasonable amount of $ 49,800 is without doubt a clear evidence of acting in bad faith. The Complainant further contends that the registration and use of the disputed domain name in bad faith is also indicated by the fact that the Respondent has registered under his email address “[…]@gmail.com” probably more than 2,636 domain names, most of them identical or misspellings of well-known trademarks, especially for selling purposes. Consequently, the Complainant contends that it is established that the Respondent did both register and use the disputed domain name in bad faith in accordance with paragraph 4(a)(iii) of the Policy. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Complainant has produced substantial evidence to demonstrate that it is the proprietor of the international trademark registration for a stylized form of the name “IronFX”. In assessing the degree of similarity between the Complainant’s trademark and the disputed domain name, the Panel shall have regard to the degree of phonetic, visual and conceptual similarity between them and where appropriate, evaluate the importance to be attached to these different elements. The issue of degree of similarity between the Complainant’s trademark and the disputed domain name is to be considered from the perspective of the average consumer of the good or services concerned and in this case, the average consumer is the Internet users seeking to use the Complainant’s on-line foreign exchange derivatives services or downloaded information about the services. The disputed domain name comprises (a) an exact reproduction of the Complainant’s trademark IRONFX, (b) the English word “global”, and (c) the top level domain suffix “.com”. The Complainant’s mark has been reproduced in its entirety in the disputed domain name. The Panel accepts the Complainant’s contention that the word “global” is a highly descriptive and generic term and describes the global resonance and reputation of the Complainant worldwide. The Panel finds that the addition of the suffix “global” to the word “ironfx” does not serve to distinguish it from the Complainant’s IRONFX trademark. In fact, the Panel finds that the addition of the suffix “global” serves to emphasize the global resonance and reputation of the Complainant worldwide as the word “global” is reflected in the Complainant’s name “IronFX Global Ltd” which increases the level of confusion of Internet users. Accordingly, the Panel finds that the disputed domain name is confusingly similar to a trademark or service mark in which the Complainant has rights. The Panel finds for the Complainant on the first part of the test. B. Rights or Legitimate Interests The burden of proof on this element lies with the Complainant. However, it is well established by previous UDRP panel decisions that once a complainant establishes a prima facie case that a respondent lacks rights or legitimate interests to a disputed domain name, the burden of production shifts to the respondent to rebut the complainant’s contentions. According to paragraph 4(c) of the Policy, the Respondent may establish its rights or legitimate interests in the disputed domain name, among other circumstances, by showing any of the following elements: (i) before any notice to the Respondent of the dispute, use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or (ii) the Respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name, even if the Respondent has acquired no trademark or service mark rights; or (iii) the Respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. The Panel finds that the Complainant has made out a prima facie showing and notes that the Respondent has not provided any evidence of the circumstances of the type specified in paragraph 4(c) of the Policy, or of any other circumstances giving rise to a right to or legitimate interest in the disputed domain name. Based on the following reasons, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name: 1. There was no evidence to show that the Complainant has authorized, licensed or otherwise consented to use the disputed domain name by the Respondent; 2. There is no evidence that the Respondent has used, or made demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or service. The Panel finds for the Complainant on the second part of the test. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the disputed domain name in bad faith, namely: (i) circumstances indicating that the Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of the Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the disputed domain name; or (ii) the Respondent has registered the disputed domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or (iii) the Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product. The Panel concludes that the circumstance referred to in paragraph 4(b)(i) of the Policy is applicable for the following reasons: The Complainant has adduced evidence to prove that by offering the disputed domain name for sale on a parking page at “www.domainpower.com” for the amount of $ 49,800, the Respondent has intentionally attempted to sell the disputed domain for consideration in excess of the Respondent’s out-of-pocket costs. The Complainant has also adduced evidence to prove that the Respondent has registered under his email address “[…]@gmail.com” probably more than 2,636 domain names, most of them identical or misspellings of well-known trademarks. In addition, the Panel finds that the Complainant enjoys a widespread reputation in its IRONFX trademark with regard to its on-line foreign exchange derivatives service and it has changed its name to “IronFX Global Ltd” on September 2, 2013. In this day and age of the Internet and advancement in information technology, the reputation of brands and trademarks transcend national borders. Therefore, the Panel finds that it is not conceivable that the Respondent would not have had actual notice of the Complainant’s trademark rights and business. Thus, it would have been pertinent for the Respondent to provide an explanation of his choice in the disputed domain name. However, the Respondent has chosen not to respond to the Complainant’s allegations in the Complaint and this leads the Panel to conclude that the disputed domain name was registered by the Respondent in bad faith to disrupt the Complainant’s business and with the purpose of selling the disputed domain name registration to the Complainant who is the owner of the trademark for valuable consideration in excess of the Respondent’s documented out-of- pocket costs directly related to the disputed domain name. The Panel finds for the Complainants on the third part of the test. 7. Decision For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <ironfxglobal.com> be transferred to the Complainant. Yukukazu Hanamizu Sole Panelist Date: February 6, 2015
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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