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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Realtime Forex SA v. Rhone Consultants SA

Case No. D2006-0089

 

1. The Parties

The Complainant is Realtime Forex SA, Carouge, Geneva, Switzerland, represented by Antonio Raposo Grau, Nominalia Internet, S.L., Barcelona, Spain.

The Respondent is Rhone Consultants SA, Nyon, Vaud, Switzerland.

 

2. The Domain Name and Registrar

The dispute concerns the Domain Name <realtime-forex.com> (the “Domain Name”).

The Domain Name is registered with Omnis Network, LLC.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) by email on January 19, 2006 and by hardcopy on January 24, 2006.

On January 20, 2006, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name at issue. On February1, 2006, the Registrar transmitted by email to the Center its verification response (i) confirming receipt of a copy of the Complaint, (ii) confirming that the Domain Name is registered with the Registrar, (iii) confirming that the Respondent is the current registrant of the Domain Name, (iv) providing details of the administrative, technical and billing contact for said registration, (v) confirming that the Uniform Domain Name Dispute Resolution Policy applies to the registration of the Domain Name, (vi) indicating the date of expiry of the Domain Name to be on December 2, 2007, (vii) confirming that the Domain Name will remain locked during the pending administrative proceeding, (viii) indicating that the language of the registration agreement is English, (ix) indicating that the jurisdiction at the location of the principal office of the Registrar for court adjudication applies.

On February 2, 2006, the Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 February 2, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was February 22, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 27, 2006.

The Center appointed Michael A.R. Bernasconi as the sole panelist in this matter on March 21, 2006. 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 a company domiciled in Switzerland, incorporated on February 10, 2000. It is an online market maker for foreign exchange running a trading platform in the Internet under its domain name <www.realtimeforex.com>. The Complainant has provided evidence of a considerable media attention in French and Swiss media.

The Complainant is the registered owner of the trademark RF REALTIME FOREX (RF REALTIME FOREX word and design), registered in Switzerland on June 19, 2002, for the international classes 9, 16 and 36, including for a number of financial services (trademark No. 500182).

The Respondent is also a company domiciled in Switzerland, incorporated on December 6, 2002. It is the registered owner of the disputed Domain Name <realtime-forex.com>, registered on February 12, 2004. The disputed Domain Name is currently unavailable, pursuant to an informal check by the Sole Panelist on April 10,2006.

However, pursuant to a further informal check by the Sole Panelist on April 10, 2006, the Respondent offers under its website <rcforexonline.com> identical services as the Complainant, i.e. an online trading platform for foreign exchange. This domain name was registered on the same date as the disputed Domain Name, i.e. on February 12, 2004. Under <rcforexonline.com>, the Respondent acts, instead under its current company name “Rhone Consultants SA”, under a business name RC forex-online although it has not registered such business name nor it has submitted any evidence of any relating trademark registered in Switzerland or in another country.

 

5. Parties’ Contentions

A. Complainant

The Complainant contends that the traffic to the disputed Domain Name is re-directed to the Respondent’s websites under <rcforexonline.com>.

The Complainant contends that the Complainant and Respondent must be considered as competitors since under their websites “www.realtime-forex.com” and “www.rcforexonline.com” basically identical services are offered, i.e. online trading platforms for foreign exchange, on the same territorial market, i.e. Switzerland.

The Complainant contends that the Domain Name is confusingly similar to its trademark RF REALTIME FOREX.

The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Domain Name, as the Complainant has never authorized the Respondent to use its trademark. Further, the Respondent has not been commonly known under the Domain Name. Further, Complainant claims that the Respondent is using the Domain Name only to re-direct Internet users to its own website competing with the Complainant’s website, and that the Respondent has not done or made demonstrable preparation to use the Domain Name with a bona fide offering of goods.

The Complainant contends that the Domain Name was registered and is being used in bad faith since the Respondent must have been aware of the trademark and company name of the Complainant, its well known competitor in Switzerland. Further, the Complainant contends that the Respondent has registered the Domain Name primarily for the purpose of disrupting the business of the Complainant and uses the Domain Name to attract, for own commercial gain, Internet users to its own website, under a domain name confusingly similar to the trademark of the Complainant and under which the same services are offered as the Complainant does.

With emails of July 22 and 27, 2005, the Complainant asked the Respondent to transfer the Domain Name to the Complainant for CHF 500 as compensation for the registration costs. The Respondent did not respond.

B. Respondent

The Respondent did not reply to the Complainant’s contentions. Accordingly, and based on Paragraph 14(a) of the Rules, the Panel shall draw such inferences from this default of Respondent as it considers appropriate.

 

6. Discussion and Findings

According to paragraph 4(a) of the Policy, the Complainant must prove that:

(i) The domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and

(ii) the Domain Name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

It is undisputed that the Complainant is the owner of the Swiss trademark registration RF REALTIME FOREX, registered on June 19, 2002, for the international classes 9, 16 and 36, including for a number of financial services (trade mark No. 500182).

The disputed Domain Name corresponds with the Complainant’s trademark, with the exception of (1) an omission of the prefixed letters “rf”, (2) the inclusion of the hyphen between the two words “realtime” and “forex” and (3) of the suffix “.com”. The two letters “RF” correspond with the first letters of the two words “realtime” and “forex” of the trademark and, therefore, seem to be solely a second reference to respectively an abbreviation of the rest of the trademark. The inclusion of the hyphen leaves the pronunciation unchanged. The ending “.com” is a generic top level domain, which is not sufficient to render a domain name dissimilar or to prevent consumer confusion. Although the disputed Domain Names is not wholly identical to the conflicting trademark, the alterations are so minor that the Domain Name and the trademark can not be avoided to be found confusingly similar. See A & F Trademark, Inc., Abercrombie & Fitch Stores, Inc., Abercrombie & Fitch Trading Co., Inc. v. Party Night, Inc., WIPO Case No. D2003-0172.

The Panel takes into consideration that the trademark RF REALTIME FOREX, or at least the part “realtime forex”, that is used in the disputed Domain Name, may be assessed to be generic or descriptive and therefore not enforceable. The question as to whether a trademark is or has become generic such that the Complainant should not have rights in respect of the trademark has been presented to a number of panels. However, in the present case, the Respondent has not conducted such defense. The registered trademark RF REALTIME FOREX serves as prima facie evidence for the validity of the trademark and creates a (rebuttable) presumption that the trademark is distinctive for these kind of proceedings. See The Cyberbingo Corporation v. 207 Media Inc., WIPO Case No. D2005-0714; The Amazing Kreskin v. Gerry McCambridge, WIPO Case No. 2000-1730. For the purpose of this proceeding, the Complainant has to be deemed to have enforceable rights in the trademark RF REALTIME FOREX.

Being that the financial services offered by the Respondent under the disputed Domain Name correspond with the services offered by the Complainant and for which the Complainant has registered the trademark, i.e. international class 36, and taking in consideration that the Domain Name is also confusingly similar to the company name under which the Complainant is registered and known in the public, it is also highly probable that the disputed Domain Name would be associated in the public’s mind with the Complainant and its trademarks. The Complainant has succeeded in proving that a risk of confusion is very likely.

The first criterion, as per Paragraph 4(a) of the Policy, is established.

B. Rights or Legitimate Interests

The Complainant contends that the Respondent has no rights or legitimate interest in the Domain Name.

The Policy paragraph 4(c) defines the following circumstances which, if proved, establish the Respondent’s right or legitimate interest to a disputed domain name: If the Respondent (i) used the Domain Name in connection with a bona fide offering of goods and services; (ii) has been commonly known by the domain name; or (iii) is making a legitimate noncommercial use of the Domain Name.

It remains undisputed that the Respondent does not use and has not made preparations to use the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services. Actually, no goods and services are offered under the disputed Domain Name. According to the Complainant, the Internet traffic of the disputed Domain Name was diverted to the Respondent’s website <rcforexonline.com> in the past under which services identical and competing with the Complainant’s services were offered. The Panel is of the view that the sole diversion of Internet traffic to unrelated websites does not represent a use of the Domain Name in connection with a bona fide offering of goods and services. See Nike, Inc. v. Circle Group Internet, Inc., WIPO Case No. D2002-0544; Arthur Guinness Son & Co. (Dublin) Limited and Diageo Ireland v. Denis Jalbert, WIPO Case No. D2003-0784.

There is no evidence that the Respondent is commonly known by the disputed Domain Name or has been authorized by the Complainant to use the REALTIME FOREX name and trademark.

The Respondent’s conduct serves the purpose of generating revenues from the sale of its own services. Further, it misleads the Internet users by diverting the traffic intended for the Complainant to the websites of a competitor being not connected with the company “Realtime Forex SA”.

Under these circumstances, the Panel concludes that the Complainant has established that the Respondent has no rights or legitimate interests in respect of the disputed Domain Name. The second requirement of Paragraph 4(a) of the Policy is therefore satisfied.

C. Registered and Used in Bad Faith

As a matter of fact, according to paragraph 4(b) of the Policy, for the purposes of the third element of paragraph 4(a), circumstances indicating that a registrant has registered a domain name primarily for the purpose of disrupting the business of a competitor or by using the domain name has intentionally attempted to attract, for commercial gain, Internet users to its own website by creating a likelihood of confusion with the complainant’s trademark as to the source, sponsorship, affiliation or endorsement of its website or location or of a product or on its own website, if found by a Panel to be present, shall be evidence of the registration and use of the domain name in bad faith.

The Respondent is located and active in the same territory as the Complainant, i.e. the French part of Switzerland. Both offering similar financial services. The Complainant was incorporated in 2000, registered a trademark in 2002, before the Respondent was even incorporated, and attracted considerable media attention as successful online platform for trading of foreign exchange. Therefore the Respondent must have known of the Complainant, the Complainant’s trademark and services prior to registering the disputed Domain Name in 2004. Since the disputed Domain Name is so obviously connected with the trademark and company name of the Complainant, its very use by someone with no connection with the Complainants suggests opportunistic bad faith.

As well, the use of the Domain Name is done in bath faith: The Respondent intentionally disrupts the business of its competitor and attempts to attract Internet users intending to find the website of the Complainant by creating a likelihood of confusion with the Complainant’s trademark, company name and services, in order to sell its own services. By running a website under a Domain Name confusingly similar to the Complainant’s trademarks and company name for its own use, Respondent is abusing Complainant’s reputation and good-will. That cannot be considered as a good faith use of the Domain Name. Prior, UDRP decisions also support the conclusion that a respondent’s registration and use of a domain name for re-directing Internet users, particularly customers and potential customers of complainants, from complainant’s website to the website of a company which directly competes with complainant, constitutes bad faith. See Staples, Inc., Staples The Office Superstore, Inc., Staples Contract and & Commercial, Inc. v. John Morgan, WIPO Case No. D2004-0537; Edmunds.com, Inc. v. Ult. Search, Inc., WIPO Case No. D2001-1319; NetWizards, Inc. v. Spectrum Enterprises, WIPO Case No. D2000-1768.

Under these circumstances, and taking into consideration the fact that the Respondent has not provided any evidence whatsoever of any actual or contemplated legitimate good faith use by himself of the Domain Name, the Panel considers that the Respondent has registered and used the Domain Name in bad faith.

Thus, the third requirement of paragraph 4(a) of the Policy is satisfied.

 

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 <realtime-forex.com> be transferred to the Complainant.

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Michael A.R. Bernasconi
Sole Panelist

Dated: April 13, 2006