Morgan Stanley v. Ryan G Foo / PPA Media Services
Claim Number: FA1607001682650
Complainant is Morgan Stanley ("Complainant"), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York, USA. Respondent is Ryan G Foo / PPA Media Services ("Respondent"), Chile.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <morgastanley.com>, registered with TLD Registrar Solutions Ltd.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 6, 2016; the Forum received payment on July 6, 2016.
On July 11, 2016, TLD Registrar Solutions Ltd. confirmed by email to the Forum that the <morgastanley.com> domain name is registered with TLD Registrar Solutions Ltd. and that Respondent is the current registrant of the name. TLD Registrar Solutions Ltd. has verified that Respondent is bound by the TLD Registrar Solutions Ltd. 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 July 11, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 1, 2016 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@morgastanley.com. Also on July 11, 2016, the Written Notice of the Complaint, notifying Respondent of the email 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On August 8, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a global financial, investment, and wealth management services company. Complainant has more than 1,000 offices in over 40 countries. Complainant has used MORGAN STANLEY and related marks in connection with this business since at least as early as 1935. Complainant's MORGAN STANLEY mark is registered in countries around the world, including the United States. Complainant asserts that its mark has become well known to consumers globally as a result of its extensive use and promotion.
The disputed domain name <morgastanley.com> was registered in 2009 through a privacy service, concealing the registrant's identity. Complainant contends that the disputed domain name is confusingly similar to Complainant's MORGAN STANLEY mark; that Respondent has no rights or legitimate interests in respect of the disputed domain name, and that the disputed domain name was registered and has been used in bad faith. In support thereof, Complainant states that Respondent is not known as MORGAN STANLEY, is not a licensee of Complainant, and has never been authorized by Complainant to use its mark. Complainant states that the disputed domain name resolves to a website that attempts to engage in phishing or download malware, and that the domain name is being offered for sale through the Sedo domain marketplace.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used in bad faith.
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.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent's failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) ("In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.").
The disputed domain name <morgastanley.com> corresponds to Complainant's registered MORGAN STANLEY mark, omitting a letter "N" and the space, and appending the ".com" top-level domain. These alterations do not diminish the similarity between the domain name and Complainant's mark. See, e.g., Morgan Stanley v. Purple Bucquet / Purple, FA 1336613 (Forum Sept. 6, 2010) (finding <marganstanley.com> confusingly similar to MORGAN STANLEY); Morgan Stanley v. Transure Enterprise Ltd c/o Host Master, FA 1315189 (Forum Apr. 30, 2010) (finding <morgannstanley.com> confusingly similar to MORGAN STANLEY); Southern Co. v. ZJ, D2007-0902 (WIPO Sept. 13, 2007) (finding <southercompany.com confusingly similar to SOUTHERN COMPANY); Hartmann, Inc. v. R9.net, FA 263580 (Forum June 17, 2004) (finding <hartman.com> confusingly similar to HARTMANN); Vanguard Group v. Dotsan, D2002-0585 (WIPO Aug. 13, 2002) (finding <vaguard.com> confusingly similar to VANGUARD). Accordingly, the Panel considers the domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name corresponds to Complainant's mark, with the introduction of a typographical error, and it apparently is being used for the sole purpose of redirecting Internet users to a website that generates pop-up windows and attempts to install malware. Such use does not give rise to rights or legitimate interests. See, e.g., Nike, Inc. v. Ryan G Foo / PPA Media Services, FA 1621341 (Forum July 2, 2015); John Stamos v. Ryan G Foo / PPA Media Services / Domain Admin / Whois Privacy Corp, FA 1618847 (Forum June 16, 2015).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Respondent has been found to have registered and used domain names in bad faith in more than 160 prior proceedings under the Policy. Respondent has been described as a "recalcitrant, serial cybersquatter." Vera Bradley, Inc. v. PPA Media Services / Ryan G Foo, FA 1516883 (Forum Oct. 16, 2013). For the same reasons as those present in numerous other cases involving Respondent, including Nike, Inc., supra, and John Stamos, supra, the Panel finds that the disputed domain name was registered and has been used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <morgastanley.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: August 11, 2016
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