Morgan Stanley v. JAMES KUTSUKOS / iweed ™
Claim Number: FA1802001772844
Complainant is Morgan Stanley (“Complainant”), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York, USA. Respondent is JAMES KUTSUKOS / iweed ™ (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <morgånstanley.com> (<xn--morgnstanley-wcb.com>) (the Domain Name) registered with Google LLC.
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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 21, 2018; the Forum received payment on February 21, 2018.
On February 21, 2018, Google LLC confirmed by e-mail to the Forum that the <morgånstanley.com> (<xn--morgnstanley-wcb.com>) domain name is registered with Google LLC and that Respondent is the current registrant of the names. Google LLC has verified that Respondent is bound by the Google LLC 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 February 23, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 15, 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@xn--morgnstanley-wcb.com. Also on February 23, 2018, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On March 20, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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’s contentions can be summarised as follows:
Complainant is the owner of the MORGAN STANLEY trade mark registered, inter alia, in the USA for financial services with first use as early as 1935. It registered morganstanley.com in 1996.
Respondent registered the Domain Name in 2018 misspelling the first ‘a’ in Complainant’s mark with an ‘å’. This difference does not avoid confusing similarity with Complainant’s mark. Nor does the addition of the gTLD .com.
Respondent is not commonly known by the Domain Name or authorized to use Complainant’s mark. The Domain Name does not resolve to an active site. This cannot be legitimate non commercial or bona fide use.
Typosquatting is by itself evidence of lack of legitimate rights and interests and is also evidence of bad faith use and registration. It is confusing and disruptive.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is the owner of the MORGAN STANLEY trade mark registered, inter alia, in the USA for financial services with first use recorded as 1935. It registered morganstanley.com in 1996.
The Domain Name is a typosquatted punycode version of Complainant’s mark with the practical effect that the first ‘a’ is replaced with ‘å’.
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 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.”).
Identical or Confusingly Similar
The Domain Name consists of a punycode typoquatted version of Complainant's MORGAN STANLEY mark (which is registered in USA since 1935 for financial services) and the gTLD .com. The practical effect is the substitution of the first ‘a’ with ‘å’. The Panel agrees that misspellings such as substitution of a letter with a punycode character does not distinguish the Domain Name from Complainant's MORGAN STANLEY trade mark pursuant to the Policy. See Nike Inc and Nike Innovate CV v Michael restl c/o Dynadot, FA 1703001723952 (Forum May 11, 2017).
The gTLD .com does not serve to distinguish the Domain Name from Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to Complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to the MORGAN STANLEY mark in which Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
Complainant has not authorised the use of its mark. Respondent has not answered this Complaint and there is no evidence or reason to suggest Respondent is, in fact. commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that Respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that Complainant had not licensed or authorized Respondent to use its ALASKA AIRLINES mark).
There has been no use of the mark. See Hewlett-Packard Co. v Shemesh, FA 434145 (Forum April 20, 2005)(Where the panel found inactive use is not a bona fide offering of goods or services pursuant to Policy 4(c)(i).)
As such the Panel finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Further the Domain Name seeks to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype Complainant’s mark and be taken to Respondent’s site is registration and use in bad faith).
As such, the Panel believes that Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under 4(b)(iii) and there is no need to consider further grounds of bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <morgånstanley.com> (<xn--morgnstanley-wcb.com>) domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: March 20, 2018
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