Morgan Stanley v. Qian Meng Dan / Zhi Qiang Yang / Domain Administrator / shi lei
Claim Number: FA2203001989084
Complainant is Morgan Stanley (“Complainant”), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York, USA. Respondent is Qian Meng Dan / Zhi Qiang Yang / Domain Administrator / shi lei (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <morganstandleydatasecuritysettlement.com>, <morganstanleydatasecuritysettlelment.com>, <morganstanleydatasecuritysettlements.org>, <wwwmorganstankeydatasecuritysettlement.com>, <morganstanleydatasecuritiessettlement.org>, <morganstanleydatasecurotysettlement.com>, <morganstanleydatesecuritysettlement.com>, <morganstanleydatsecuritiessettlement.com>, <morganstanleysdatasecuritysettlement.com>, <morganstanleysettlement.org>, <morganstanledatasecuritysettlement.com>, <morganstanleydatasecuritysettlements.com>, <morgastanleydatasecuritysettlement.com>, <morgamstanleydatasecuritysettlement.com>, <morgansstanleydatasecuritysettlement.com>, <morganstaneydatasecuritysettlement.com>, <morganstanleydatascuritysettlement.com>, <morganstanleydataseciritysettlement.com>, <morganstanleydatasecuritylawsuit.com>, <morganstanleydatasecuritylawsuits.com>, <morganstanleydatasecuritysettkement.com>, <morganstanleydatasecuritysettlememt.com>, <morganstanleydatasecuritysettlemeny.com>, <morganstanleydatasecuritysettlemet.com>, <morganstanleydatasecuritysettlrment.com>, <morganstanleydatasecuritysetttlement.com>, <morganstanleydatassecuritysettlement.com>, <morganstanelydatasettlement.com>, <morganstanleydatasecuirtysettlement.com>, <morganstanleydatasecruritysettlement.com>, <morganstanleydatasecuritysettlenent.com>, <morganstanleydatasecuriysettlement.com>, <morganstanleydatasecurtysettlement.com>, <morganstanleydatasecurutysettlement.com>, <morganstanleydtasecuritysettlement.com>, <morganstanleydatasecuritysettlerment.com>, <morganstanleydarasecuritysettlement.com>, <morganstanleydatasecuritysettleement.com>, <morganstanleydataseuritysettlement.com>, <morgnstanleydatasecuritysettlement.com>, <marganstanleydatasecuritysettlement.com>, <mirganstanleydatasecuritysettlement.com>, <morgansanleydatasecuritysettlement.com>, <morganstamleydatasecuritysettlement.com>, <mortganstanleydatasecuritysettlement.com>, <morganstaleydatasecuritysettlement.com>, <moganstanleydatasecuritysettlement.com>, <morganstankeydatasecuritysettlement.com>, <morganstanleydatasecutitysettlement.com>, <morganstanleydatssecuritysettlement.com>, <morganstanleydatasecuritysettleent.com>, <morganstanleydatasecuritysettlemnt.com>, <morganstanleydatasecuritysttlement.com>, <morganstanleydatasecuritysettle.com>, <morganstanleudatasecuritysettlement.com>, <morganstanleydataaecuritysettlement.com>, <morganstanleydatasecuritysettlementletter.com>, and <morganstanlwtdatasecuritysettlement.com>, (collectively “Domain Names”) registered with Chengdu West Dimension Digital Technology Co., Ltd., Dnspod, Inc. and Sav.Com, Llc.
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.
Nicholas J.T. Smith as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 21, 2022; the complaint was received in both English and Chinese; the Forum received payment on March 21, 2022.
Between March 22, 2022 and March 29, 2022 the respective Registrars Chengdu West Dimension Digital Technology Co., Ltd., Dnspod, Inc. and Sav.Com, Llc. confirmed by e-mail to the Forum that the Domain Names are registered with them and that Respondent is the current registrant of the names. Each of the Registrars has verified that Respondent is bound by their 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 March 29, 2022, the Forum served the Complaint and all Annexes, including a Chinese and English Language Written Notice of the Complaint, setting a deadline of April 18, 2022 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@morganstandleydatasecuritysettlement.com, postmaster@morganstanleydatasecuritysettlelment.com, postmaster@morganstanleydatasecuritysettlements.org, postmaster@wwwmorganstankeydatasecuritysettlement.com, postmaster@morganstanleydatasecuritiessettlement.org, postmaster@morganstanleydatasecurotysettlement.com, postmaster@morganstanleydatesecuritysettlement.com, postmaster@morganstanleydatsecuritiessettlement.com, postmaster@morganstanleysdatasecuritysettlement.com, postmaster@morganstanleysettlement.org, postmaster@morganstanledatasecuritysettlement.com, postmaster@morganstanleydatasecuritysettlements.com, postmaster@morgastanleydatasecuritysettlement.com, postmaster@morgamstanleydatasecuritysettlement.com, postmaster@morgansstanleydatasecuritysettlement.com, postmaster@morganstaneydatasecuritysettlement.com, postmaster@morganstanleydatascuritysettlement.com, postmaster@morganstanleydataseciritysettlement.com, postmaster@morganstanleydatasecuritylawsuit.com, postmaster@morganstanleydatasecuritylawsuits.com, postmaster@morganstanleydatasecuritysettkement.com, postmaster@morganstanleydatasecuritysettlememt.com, postmaster@morganstanleydatasecuritysettlemeny.com, postmaster@morganstanleydatasecuritysettlemet.com, postmaster@morganstanleydatasecuritysettlrment.com, postmaster@morganstanleydatasecuritysetttlement.com, postmaster@morganstanleydatassecuritysettlement.com, postmaster@morganstanelydatasettlement.com, postmaster@morganstanleydatasecuirtysettlement.com, postmaster@morganstanleydatasecruritysettlement.com, postmaster@morganstanleydatasecuritysettlenent.com, postmaster@morganstanleydatasecuriysettlement.com, postmaster@morganstanleydatasecurtysettlement.com, postmaster@morganstanleydatasecurutysettlement.com, postmaster@morganstanleydtasecuritysettlement.com, postmaster@morganstanleydatasecuritysettlerment.com, postmaster@morganstanleydarasecuritysettlement.com, postmaster@morganstanleydatasecuritysettleement.com, postmaster@morganstanleydataseuritysettlement.com, postmaster@morgnstanleydatasecuritysettlement.com, postmaster@marganstanleydatasecuritysettlement.com, postmaster@mirganstanleydatasecuritysettlement.com, postmaster@morgansanleydatasecuritysettlement.com, postmaster@morganstamleydatasecuritysettlement.com, postmaster@mortganstanleydatasecuritysettlement.com, postmaster@morganstaleydatasecuritysettlement.com, postmaster@moganstanleydatasecuritysettlement.com, postmaster@morganstankeydatasecuritysettlement.com, postmaster@morganstanleydatasecutitysettlement.com, postmaster@morganstanleydatssecuritysettlement.com, postmaster@morganstanleydatasecuritysettleent.com, postmaster@morganstanleydatasecuritysettlemnt.com, postmaster@morganstanleydatasecuritysttlement.com, postmaster@morganstanleydatasecuritysettle.com, postmaster@morganstanleudatasecuritysettlement.com, postmaster@morganstanleydataaecuritysettlement.com, postmaster@morganstanleydatasecuritysettlementletter.com, postmaster@morganstanlwtdatasecuritysettlement.com. Also on March 29, 2022, the Chinese and English Language 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 April 25, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Nicholas J.T. Smith 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 Names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
Complainant contends that the registrants for the Domain Names are related because the Domain Names are almost identical, consisting of Complainant’s name (sometimes misspelled) and some combination of the words “data”, “security”, “lawsuit”, “settle”, “settlement” and “www”. Each of the registrants hosts at least some of their Domain Names with the same ISP and resolve some of their Domain Names to essentially identical pay-per-click sites (the “Respondent’s Websites”). The Domain Names were all registered in March 2022. This evidence, in the Panel’s opinion, strongly suggests that the Domain Names are owned/controlled by a single Respondent; were the named Respondents unrelated, it would be unlikely that four unconnected entities would register 58 similar domain names targeted at the same entity and point many of them to similar websites operating on the same business model.
In light of these contentions, which none of the identified Respondents deny, the Panel concludes that, on the balance of probabilities, the Domain Names are commonly owned/controlled by a single Respondent who is using multiple aliases. Hereafter the single Respondent will be referred to as “Respondent” in this Decision.
Preliminary Issue: Language of Proceeding
The language of the registration agreements for the Domain Names is Chinese. The Complaint is in English and Complainant requests that pursuant to UDRP Rule 11(a) the language of the proceeding be English.
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
A. Complainant
Complainant is one of the world’s largest financial services companies. Complainant has rights in the MORGAN STANLEY mark through its registrations with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. 1,707,196, registered Aug. 11, 1992). The Domain Names are confusingly similar to the MORGAN STANLEY mark as they incorporate the MORGAN STANLEY mark or misspelled versions of the mark and add different iterations of the words/phrase “data security settlement” along with the “.com” or “.org” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the Domain Names. Respondent is not commonly known by the Domain Names, nor has Complainant authorized or licensed Respondent to use its MORGAN STANLEY mark in the Domain Names. Respondent does not use the Domain Names for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead inactively holds or hosts parked, pay-per-click links on the Domain Names’ resolving websites.
Respondent registered and uses the Domain Names in bad faith. The Domain Names are either inactive or resolve to pay-per-click links at the Respondent’s Websites. Respondent registered the Domain Names with knowledge of Complainant’s rights in the MORGAN STANLEY mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the MORGAN STANLEY mark. Each of the Domain Names is confusingly similar to the MORGAN STANLEY mark. Complainant has established that Respondent lacks rights or legitimate interests in the Domain Names and that Respondent registered and has used the Domain Names 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant has rights in the MORGAN STANLEY mark through registration with the USPTO (e.g., Reg. 1,707,196, registered Aug. 11, 1992). Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Target Brands, Inc. v. jennifer beyer, FA 1738027 (Forum July 31, 2017) ("Complainant has rights in its TARGET service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office (“USPTO”).”).
The Panel finds that each of the Domain Names is confusingly similar to the MORGAN STANLEY mark as they each incorporate either MORGAN STANLEY mark or a minor misspelling of the MORGAN STANLEY mark. The Domain Names then add generic terms (sometimes misspelled) (“data”, “security” and “settlement” for example) and a gTLD to the mark or mispelling. Addition of generic or descriptive terms and a TLD to a trade mark or misspelling of a trade mark is generally insufficient to negate confusing similarity between a domain name and a mark under Policy ¶ 4(a)(i). See Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) (“Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the DELL mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i).”); see also Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also Wells Fargo & Company v. VALERIE CARRINGTON, FA 1621718 (Forum July 2, 2015) (finding that the <wllsfago.com> domain name is confusingly similar to the WELLS FARGO mark as the domain name merely omits the “e” and “r” from the mark while adding the “.com” gTLD suffix.); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (finding top-level domains are irrelevant for purposes of Policy ¶ 4(a)(i) analysis).
Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Names. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Names under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”). The Panel holds that Complainant has made out a prima facie case.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Names as Respondent is not commonly known by the Domain Names, nor has Complainant authorized Respondent to use the MORGAN STANLEY mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). The WHOIS lists “Qian Meng Dan / Zhi Qiang Yang / Domain Administrator / shi lei” as the registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Names in accordance with Policy ¶ 4(c)(ii).
The Domain Names are either inactive, which by itself does not establish rights or legitimate interests, or resolve to websites featuring pay-per-click links to third party websites unconnected to any descriptive meaning of the specific domain name. Such use is not indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”); see also Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees). See also TMP Int’l, Inc. v. Baker Enters., FA 204112 (Forum Dec. 6, 2003) (“[T]he Panel concludes that Respondent's [failure to make an active use] of the domain name does not establish rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds on the balance of probabilities that, at the time of registration of the Domain Names, March 2022, Respondent had actual knowledge of Complainant’s MORGAN STANLEY mark. The Complainant has developed a significant global reputation in its MORGAN STANLEY mark. Furthermore, it is improbable that a party would register 58 domain names containing the MORGAN STANLEY mark in the absence of any awareness of these marks. In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and uses the Domain Names in bad faith to create confusion with Complainant’s MORGAN STANLEY mark for commercial gain by using the confusingly similar Domain Names to resolve to websites containing advertisements and links to third party websites for commercial gain (or passively hold the domain names pending use for this purpose). Use of a confusingly similar domain name to redirect Internet users to a website containing advertisements and links to third party websites for commercial gain is indicative of bad faith registration and use per Policy ¶ 4(b)(iv). See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent registered and used the domain name in bad faith under Policy ¶ 4(b)(iv) where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business); see also Tumblr, Inc. v. Ailing Liu, FA1402001543807 (Forum Mar. 24, 2014) (“Bad faith use and registration exists under Policy ¶ 4(b)(iv) where a respondent uses a confusingly similar domain name to resolve to a website featuring links and advertisements unrelated to complainant’s business and respondent is likely collecting fees.”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <morganstandleydatasecuritysettlement.com>, <morganstanleydatasecuritysettlelment.com>, <morganstanleydatasecuritysettlements.org>, <wwwmorganstankeydatasecuritysettlement.com>, <morganstanleydatasecuritiessettlement.org>, <morganstanleydatasecurotysettlement.com>, <morganstanleydatesecuritysettlement.com>, <morganstanleydatsecuritiessettlement.com>, <morganstanleysdatasecuritysettlement.com>, <morganstanleysettlement.org>, <morganstanledatasecuritysettlement.com>, <morganstanleydatasecuritysettlements.com>, <morgastanleydatasecuritysettlement.com>, <morgamstanleydatasecuritysettlement.com>, <morgansstanleydatasecuritysettlement.com>, <morganstaneydatasecuritysettlement.com>, <morganstanleydatascuritysettlement.com>, <morganstanleydataseciritysettlement.com>, <morganstanleydatasecuritylawsuit.com>, <morganstanleydatasecuritylawsuits.com>, <morganstanleydatasecuritysettkement.com>, <morganstanleydatasecuritysettlememt.com>, <morganstanleydatasecuritysettlemeny.com>, <morganstanleydatasecuritysettlemet.com>, <morganstanleydatasecuritysettlrment.com>, <morganstanleydatasecuritysetttlement.com>, <morganstanleydatassecuritysettlement.com>, <morganstanelydatasettlement.com>, <morganstanleydatasecuirtysettlement.com>, <morganstanleydatasecruritysettlement.com>, <morganstanleydatasecuritysettlenent.com>, <morganstanleydatasecuriysettlement.com>, <morganstanleydatasecurtysettlement.com>, <morganstanleydatasecurutysettlement.com>, <morganstanleydtasecuritysettlement.com>, <morganstanleydatasecuritysettlerment.com>, <morganstanleydarasecuritysettlement.com>, <morganstanleydatasecuritysettleement.com>, <morganstanleydataseuritysettlement.com>, <morgnstanleydatasecuritysettlement.com>, <marganstanleydatasecuritysettlement.com>, <mirganstanleydatasecuritysettlement.com>, <morgansanleydatasecuritysettlement.com>, <morganstamleydatasecuritysettlement.com>, <mortganstanleydatasecuritysettlement.com>, <morganstaleydatasecuritysettlement.com>, <moganstanleydatasecuritysettlement.com>, <morganstankeydatasecuritysettlement.com>, <morganstanleydatasecutitysettlement.com>, <morganstanleydatssecuritysettlement.com>, <morganstanleydatasecuritysettleent.com>, <morganstanleydatasecuritysettlemnt.com>, <morganstanleydatasecuritysttlement.com>, <morganstanleydatasecuritysettle.com>, <morganstanleudatasecuritysettlement.com>, <morganstanleydataaecuritysettlement.com>, <morganstanleydatasecuritysettlementletter.com>, and <morganstanlwtdatasecuritysettlement.com> domain names be TRANSFERRED from Respondent to Complainant.
Nicholas J.T. Smith, Panelist
Dated: April 27, 2022
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