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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

BGC Partners, Inc., BGC Partners, L.P. v. Bob Jenkins

Case No. D2009-0856

1. The Parties

Complainants are BGC Partners, Inc. BGC Partners, L.P. of New York, United States of America ("United States" or "U.S.") represented by Kilpatrick Stockton LLP, United States.

Respondent is Bob Jenkins of Sarasota, Florida, United States.

2. The Domain Name and Registrar

The disputed domain name <bgcsecurities.com> (the "Domain Name") is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 27, 2009. On June 29, 2009, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com a request for registrar verification in connection with the Domain Name. On June 30, 2009, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact. 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 Respondent of the Complaint, and the proceedings commenced on July 7, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was July 27, 2009. Respondent did not submit any response. Accordingly, the Center notified Respondent`s default on August 3, 2009.

The Center appointed Michael A. Albert as the sole panelist in this matter on August 14, 2009. 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

Complainant BGC Partners, Inc. is a Delaware corporation with its headquarters in New York, United States. Complainant provides integrated voice and electronic services to wholesale market participants. It has operated under the BGC name since 2004. Complainant`s core business involves rates, foreign exchange, equity derivatives, credit derivatives, futures, and various other brokerage services. Complainant and its affiliates conduct business throughout the world.

Complainant is the owner of United States registered trademark BGC for financial services in the form of a word mark and a stylized word mark. See U.S. Reg. No. 3,184,410 and U.S. Reg. No. 3,184,463. The United States Patent and Trademark Office issued these marks December 12, 2006.

Complainant owns several other trademark registrations for BGC alone and BGC in combination with other terms including "partners," "brokerage," and "international" in various government trademark offices such as those associated with the United Kingdom of Great Britain and Northern Ireland, Hong Kong, SAR of China, and the European Union. All of these registrations were filed in or around 2004.

Complainant has used BGC Securities as the trade name for its Hong Kong affiliate.

Complainant operates its own websites at URLs "www.bgcpartners.com" and "www.bgcfx.com".

Respondent appears to have registered the Domain Name <bgcsecurities.com> on April 19, 2009.

The disputed domain name resolves to a page displaying what looks to be the website of a financial services company named BGC Securities. The site contains pages referencing services, the history of BGC Securities, and contact information.

Respondent did not file a response in these proceedings and was notified of its default by the Center on August 3, 2009.

5. Parties` Contentions

A. Complainant

Complainant contends that:

(a) in accordance with Policy, paragraph 4(a)(i), the Domain Name is identical or confusingly similar to a trademark it owns;

(b) in accordance with Policy, paragraph 4(a)(ii), Respondent has no rights or legitimate interests in respect of the Domain Name; and

(c) in accordance with Policy, paragraphs 4(a)(iii) and 4(b), Respondent registered and used the Domain Name in bad faith.

Complainant contends that it has spent "significant sums" advertising and promoting its mark, and as a result of its use and promotion, the BGC mark has become well-known in the financial services community.

Complainant contends that the Domain Name merely adds the word "securities" to its trademark, and is therefore almost identical and confusingly similar to its registered mark.

Complainant contends that the Domain Name copies its BGC Securities trade name in its entirety.

Complainant contends that consumers who come across the Domain Name will reasonably believe it is related to the Complainant.

Complainant asserts its adoption of the BGC mark predates any use by the Respondent.

Complainant asserts that Respondent is not related to Complainant in any way and that the Respondent has not received any license, permission, or right to use the BGC mark in any way.

Complainant contends that Respondent has no legitimate interest in the Domain Name. Complainant contends that Respondent has sought to profit by using the Domain Name that is confusingly similar to Complainant`s registered mark in order to profit from the goodwill associated with the registered mark.

Complainant contends that Respondent created a fictional and fraudulent financial services company. Complainant asserts that there is no company registered at "BGC Securities" in the United States. Furthermore, Complainant asserts that the telephone number listed on the website is non-working and the company address is an empty lot.

Complainant contends that Respondent registered the Domain Name in bad faith for commercial gain. Complainant argues that Respondent sought to profit by creating an "aura of affiliation" with the Complainant.

Complainant contends that Respondent`s use of the Domain Name amounts to a phishing scheme whereby Respondent designed the website to trick consumers into believing that the site is affiliated with Complainant.

B. Respondent

The Respondent did not reply to the Complainant`s contentions.

6. Discussion and Findings

Procedural Matters

Default of Respondent: Respondent has not provided an answer to the Complaint.

Respondent`s failure to deny Complainant`s allegations and proffer evidence in rebuttal of such allegations does, in accordance with the Rules, paragraphs 5(e) and 14, permit the Panel to draw appropriate inferences. Nonetheless, Complainant retains the burden

of proving the three requisite elements of Policy, paragraph 4(a).

Substantive Matters

Paragraph 4 of the Policy requires that Complainant prove each of the following

elements in order for the Domain Name to be transferred:

(a) the Domain Name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;

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

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

A. Identical or Confusingly Similar

The Panel finds that Complainant BSG Partners, Inc. is the owner of rights in the trademark BGC and uses the trademark in the United States in connection with the scope of goods and services granted in its registration. The trademark registration creates a rebuttable presumption that Complainant`s marks are inherently distinctive. EAuto, L.L.C. v. Triple S. Auto Parts d/b/a Kung Fu Yea Enterprises, Inc., WIPO Case No. D2000-0047. Complainant`s registrations of its mark on the Principal Register of the United States Patent and Trademark Office establishes a presumption of validity of the marks under United States law. See 15 U.S.C. В§ 1057(b); Avery Dennison v. Sumpton, 189 F.3d 868 (9th Cir. 1999).

The Panel finds that the Domain Name <bgcsecurities.com> is confusingly similar to Complainant`s BGC trademark. Respondent merely added the word "securities" to the end of the mark. The Panel finds that this action is insufficient to distinguish the Domain Name from Complainant`s trademark. See PepsiCo, Inc. v. PEPSI, SRL (a/k/a P.E.P.S.I.) and EMS COMPUTER INDUSTRY (a/k/a EMS), WIPO Case No. D2003-0696 (incorporating a trademark in its entirety can be sufficient to establish that a domain name is identical or confusingly similar to a registered trademark).

The likelihood of confusion between a mark and a domain name is generally not eliminated or reduced by the addition of generic terms. See MasterCard International Incorporated v. John Henry Enterprises, WIPO Case No. D2001-0632 (adding word "international" to the trademark MASTERCARD does not eliminate confusion); AT&T Corp. v. Fred Rice, WIPO Case No. D2000-1276 (adding word "global" to an AT&T trademark was insufficient to distinguish the domain name from the trademark).

Furthermore, the addition of "securities" to Complainant`s mark may actually increase the likelihood of confusion. Dealing in securities is one aspect of Complainant`s business, and a reasonable consumer might believe the disputed Domain Name is associated with or endorsed by Complainant. Complainant uses the trade name "BGC Securities" for its Hong Kong, SAR of China, affiliate which makes confusion even more likely.

For the foregoing reasons, the Panel finds that Complainant has met the burden of proving this first requirement of Policy, paragraph 4. As Respondent has failed to reply with evidence to the contrary, the Panel finds that the Domain Name is confusingly similar to Complainant`s BGC trademark.

B. Rights or Legitimate Interests

According to the Policy, paragraph 4(c), Complainant must show that Respondent does not use the Domain Name or any corresponding name in connection with a bona fide offering of goods or services; is not commonly known by the Domain Name; and is not making a legitimate noncommercial fair use of the Domain Name.

The Panel finds that Respondent does not use the Domain Name or any corresponding name with a bona fide offering of goods or services. Complainant asserts, unrebutted, that Respondent has created a fictional company, with fictional employees, at a fictional location. The Panel has reviewed the accompanying evidence and finds it consistent with Complainant`s allegations that the Respondent, using the Domain Name, created a website relating to an apparently nonexistent company which does not make any bona fide offer of goods or services.

On the basis of Complainant`s unrebutted assertions, the Panel finds that the Complainant has no connection or relationship with Respondent whatsoever. The Panel also finds that the Respondent had no right, license, or permission to use Complainant`s mark.

There is no evidence that Respondent has ever been known by the Domain Name or any corresponding name.

There is no evidence that Respondent is making legitimate noncommercial or fair use of the Domain Name. The evidence shows that Respondent is attempting to create a commercial enterprise by exploiting Complainant`s well known mark. Attempting to pass itself off as Complainant for financial gain does not constitute a legitimate interest. See eSpeed Government Securities, Inc. and Aqua Securities, L.P. v. aqua-securities, WIPO Case No. D2007-1661 ("Respondent is not using the domain name in connection with a bona fide offering of goods or services. Nor is Respondent making a legitimate noncommercial or fair use of the domain name. Rather, Respondent appears to have registered and is using the domain name solely for financial gain by passing itself off as Complainant […] and by deceiving Internet users.")

In light of the foregoing evidence, the Panel finds that Complainant has met its burden under the second requirement of Policy, paragraph 4. Since Respondent has failed to answer with evidence to the contrary, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances which are evidence of bad faith use of a domain name. In particular, paragraph 4(b)(iv) states bad faith is present if respondent has "intentionally attempted to attract, for commercial gain, Internet users to [its] web site…by creating a likelihood of confusion with the complainant`s mark as to the source, sponsorship, affiliation, or endorsement of [the] web site…."

The Panel finds that Respondent registered and used the Domain Name <bgcsecurities.com> in bad faith Respondent`s website purports to offer for sale services similar to Complainant`s services.

The Panel finds that Respondent knowingly and intentionally created the website in order to capitalize on the goodwill Complainant created through its marketing efforts. It is hard to imagine another reason for the name "BGC Securities" other than an attempted association with Complainant. Reasonable and unrebutted inferences point to Respondent registering and using the Domain Name for commercial gain.

The Panel finds that Respondent is using the Domain Name either to capitalize on the goodwill associated with Complainant`s mark by making an offer of possibly non-existent services, or to trick Internet users into divulging personal information by convincing them that the Domain Name is likely associated with Complainant. Such "phishing" schemes are a basis for finding bad faith. See, e.g., Australia and New Zealand Banking Group Ltd. v. Bashar Ltd., WIPO Case No. D2007-0031; CareerBuilder, LLC v. Stephen Baker, WIPO Case No. D2005-0251.

In light of the foregoing evidence, the Panel finds that Complainant has met its burden under the third requirement of Policy, paragraph 4. Since Respondent has failed to answer with evidence to the contrary, the Panel finds that Respondent has registered and used the Domain Name in bad faith.

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 domain name <bgcsecurities.com> be transferred to Complainant.


Michael A. Albert
Sole Panelist

Dated: August 21, 2009

 

Источник информации: https://internet-law.ru/intlaw/udrp/2009/d2009-0856.html

 

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