FIBO Consulting LTD v. Domain Admin / Whois Privacy Corp.
Claim Number: FA1712001763219
Complainant is FIBO Consulting LTD (“Complainant”), represented by Vladimir Marusiy of Prepass 2, Flat/Office 302, Cyprus. Respondent is Domain Admin / Whois Privacy Corp. (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <fibo-forex.net>, registered with Internet Domain Service BS Corp.
The undersigned certifies that he or she 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.
Mark McCormick as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 18, 2017; the Forum received payment on December 18, 2017.
On Dec 19, 2017, Internet Domain Service BS Corp confirmed by e-mail to the Forum that the <fibo-forex.net> domain name is registered with Internet Domain Service BS Corp and that Respondent is the current registrant of the name. Internet Domain Service BS Corp has verified that Respondent is bound by the Internet Domain Service BS Corp 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 December 28, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 17, 2018 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@fibo-forex.net. Also on December 28, 2017, 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.
A timely Response was received and determined to be complete on December 29, 2017.
On January 4, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Mark McCormick 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant, FIBO Consulting LTD, has rights in the FIBOGROUP mark due to its Cyprus Trademark Certificate (Reg. No. 82946, registered Jul. 1, 2014). Complainant also claims rights to the mark based upon its international registration of the mark with the World Intellectual Property Office (“WIPO”) (F FIBOGROUP—Reg. No. 1303697, registered Mar. 23, 2016), which includes a stylized “F”. Respondent’s <fibo-forex.net> domain name is identical and confusingly similar to Complainant’s FIBOGROUP marks.
Respondent has no rights or legitimate interests in the <fibo-forex.net> domain name. Complainant owns the FIBOGROUP marks, and has a list of domains, including <fibo-forex.org>. Complainant’s trademark was registered before the registration date of the domain name.
Respondent registered and is using the <fibo-forex.net> domain name in bad faith. Respondent is not using the domain name to provide services or sell goods, but instead uses the name to publish fake news and insults towards Complainant. Respondent thus uses the name primarily for the purposes of disrupting Complainant’s business.
B. Respondent
Respondent contends that the <fibo-forex.net> domain name differs sufficiently from the F FIBOGROUP mark to defeat a finding of confusing similarity.
Respondent claims it has rights and legitimate interests in the <fibo-forex.net> domain name and has not registered or used the name in in bad faith. Respondent uses the domain name to display information from a study of a group of independent authors detailing the fraudulent activity of Complainant. Thus, its use is strictly informational, and is not an attempt to compete with Complainant or gain commercially.
Complainant, FIBO Consulting LTD, has rights in the FIBOGROUP mark due to its Cyprus Trademark Certificate (Reg. No. 82946, registered Jul. 1, 2014). Complainant also claims rights to the mark based upon its international registration of its mark with the World Intellectual Property Office (“WIPO”) (F FIBOGROUP—Reg. No. 1303697, registered Mar. 23, 2016), which includes a stlized “F”. Respondent’s <fibo-forex.net> domain name is identical and confusingly similar to Complainant’s FIBOGROUP marks.
Respondent has no rights or legitimate interests in the <fibo-forex.net> domain name. Complainant owns the FIBOGROUP marks, and has a list of domains, including <fibo-forex.org>. Complainant’s trademark was registered before the registration date of the domain name.
Respondent registered and is using the <fibo-forex.net> domain name in bad faith. Respondent is not using the domain name to provide services or sell goods, but instead uses the name to publish fake news and insults towards Complainant. Respondent thus uses the name primarily for the purposes of disrupting Complainant’s business.
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.
Complainant claims rights in the FIBOGROUP mark based upon registration of the mark with the Cyprus trademark authority (Reg. No. 82946, registered Jul. 1, 2014). Registration of a mark with a governmental authority is sufficient to establish rights in that mark. See MadisonFlatFeeHomes.Com. LLC v. Stuart Meland, FA 1724843 (Forum May 10, 2017) (“Registration of a mark with a state authority can sufficiently evince rights in a mark.”). Complainant also claims rights to the mark based upon its international registration with WIPO (F FIBOGROUP—Reg. No. 1303697, registered Mar. 23, 2016). Complainant’s Cyprus trademark registration of the F FIBOGROUP mark is sufficient to establish rights in the mark under Policy ¶ 4(a)(i). The two marks hereinafter will be referred to as Complainant’s FIBOGROUP marks.
Complainant next argues Respondent’s <fibo-forex.net> domain name is identical to the FIBOGROUP marks as it merely adds a generic top-level domain (“gTLD”) to the marks. Addition of a gTLD is not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See Roche Therapeutics Inc. v. Williams Shorell, FA 1684961 (Forum Aug. 30, 2016) (“Complainant asserts Respondent’s <boniva.top> domain name is identical to the BONIVA mark. The addition of a generic top level domain to a mark does not differentiate the domain from said mark under Policy ¶ 4(a)(i).”). Although Complainant claims the <fibo-forex.net> domain name is identical to the FIBOGROUP marks, the name omits the term “group” from Complainant’s mark, and adds a hyphen and the term “forex.” Such changes are not sufficient to distinguish the domain name from the mark. See VNY Model Management, Inc. v. Lisa Katz / Domain Protection LLC, FA 1625115 (Forum Aug. 17, 2015) (finding that Respondent’s <vnymodels.com> domain name is confusingly similar to the VNY MODEL MANAGEMENT mark. The <fibo-forex.net> domain name is confusingly similar to the FIBOGROUP marks 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), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). Complainant has met its burden here.
Complainant argues that Respondent has no rights or legitimate interests in the <fibo-forex.net> domain name, as Respondent registered the name after Complainant’s FIBOGROUP domain was registered. Typically, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). The WHOIS information of record identifies Respondent as “FIBO Consulting LTD v. Domain Admin / Whois Privacy Corp.” Respondent has not been commonly known by the <fibo-forex.net> domain name.
Complainant further claims Respondent’s lack of rights or legitimate interests in the <fibo-forex.net> 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. The accusations posted on the website are false and intend to cause damage to Complainant’s business.
Complainant further contends that Respondent’s use of Complainant’s marks and logos on the resolving website is illegal and demonstrates the illegitimacy of Respondent’s use of the name. The use of a logo on a resolving website can demonstrate a respondent’s lack of rights or legitimate interests, if the logo is famous and its use amounts to an attempt to pass off as the complainant. See Netflix, Inc. v. Irpan Panjul / 3corp.inc, FA 1741976 (Forum Aug. 22, 2017) (“The usage of Complainant’s NETFLIX mark which has a significant reputation in relation to audio visual services for unauthorised audio visual material is not fair as the site does not make it clear that there is no commercial connection with Complainant and this amounts to passing off . . . As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name.”). Respondent’s use of the domain name is not legitimate and Respondent lacks rights and legitimate interests in the domain name under Policy ¶¶ 4(c)(i) and (iii).
Complainant claims Respondent registered and is using the <fibo-forex.net> domain name in bad faith to disrupt Complainant’s business. Use of a domain name to disrupt a complainant’s business can amount to Policy ¶ 4(b)(iii) bad faith. See Jerie v. Burian, FA 795430 (Forum Oct. 30, 2006) (concluding that the respondent registered and used the <sportlivescore.com> domain name in order to disrupt the complainant’s business under the LIVESCORE mark because the respondent was maintaining a website in direct competition with the complainant); see also PopSockets LLC v. san mao, FA 1740903 (Forum Aug. 27, 2017) (finding disruption of a complainant’s business which was not directly commercial competitive behavior was nonetheless sufficient to establish bad faith registration and use per Policy ¶ 4(b)(iii)). Respondent uses the domain name to cause damage to Complainant with accusations and insults. Respondent thus acted in bad faith under Policy ¶ 4(b)(iii).
Because Complainant prevailed on its Complaint, Respondent’s contention that the Complaint was filed in bad faith is without merit and has been rejected.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <fibo-forex.net> domain name be TRANSFERRED from Respondent to Complainant.
Mark McCormick, Panelist
Dated: January 18, 2018
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page