Morgan Stanley v. Micheal Ard
Claim Number: FA1708001747231
Complainant is Morgan Stanley ("Complainant"), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York, USA. Respondent is Micheal Ard ("Respondent"), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <morganstanleycashloans.com>, registered with Name.com, Inc.
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 August 31, 2017; the Forum received payment on August 31, 2017.
On September 01, 2017, Name.com, Inc. confirmed by email to the Forum that the <morganstanleycashloans.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, Inc. 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 September 5, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 25, 2017 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@morganstanleycashloans.com. Also on September 5, 2017, 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 September 26, 2017, 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, including the United States and Australia; more than 55,000 employees; and net annual revenues exceeding US $35 billion. 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 is famous and has become well known to consumers globally as a result of its extensive use and promotion.
Respondent registered the disputed domain name <morganstanleycashloans.com> in August 2017. 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 is being 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. The disputed domain name resolves to a website titled "Morgan Stanley Cash Loans" that purports to offer lending services competitive with those offered by Complainant. Complainant suggests that Respondent is using this "phishing" website to fraudulently acquire Internet users' personal information by creating confusion with Complainant.
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 is being 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 (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 <morganstanleycashloans.com> corresponds to Complainant's registered MORGAN STANLEY mark, adding the generic term "cash loans," omitting the spaces, and appending the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Comerica Bank v. Micheal Ard, D2017-1487 (WIPO Sept. 14, 2017) (finding <comericacashloans.com> confusingly similar to COMERICA); Morgan Stanley v. Harish Sreenivasa Shetty, FA 1727690 (Forum May 3, 2017) (finding <morganstanleypay.com> confusingly similar to MORGAN STANLEY). Accordingly, the Panel considers the domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to 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 combines Complainant's well-known and distinctive mark with a generic term related to Complainant's industry. Respondent has not been authorized to use Complainant's mark, and its sole apparent use of the disputed domain name has been to pass off as Complainant and promote directly competing services. See Comerica Bank v. Micheal Ard, supra (finding lack of rights or legitimate interests under similar circumstances); Charles Schwab & Co., Inc. v. Micheal Ard, FA 1741975 (Forum Aug. 24, 2017) (same). 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.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy,
bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site 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 [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent's registration of a domain name that incorporates Complainant's well-known mark, together the use of the domain name to generate revenues by creating confusion with Complainant, promoting directly competing services, and likely "phishing" for users' personal information, is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv) of the Policy. See, e.g., Comerica Bank v. Micheal Ard, supra (finding bad faith registration and use under similar circumstances); Charles Schwab & Co., Inc. v. Micheal Ard, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <morganstanleycashloans.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: September 27, 2017
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