Morgan Stanley v. wencheng jian
Claim Number: FA2203001990401
Complainant is Morgan Stanley (“Complainant”), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York, USA. Respondent is wencheng jian (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <morgantsanley.com>, registered with NameCheap, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 30, 2022; the Forum received payment on March 30, 2022.
On March 30, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <morgantsanley.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 March 31, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 20, 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@morgantsanley.com. Also on March 31, 2022, 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 April 26, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it offers a full range of financial, investment, and wealth management services to a broad spectrum of clients through a unique combination of institutional and retail capabilities. With over 1,000 offices in over 40 countries, and over 55,000 employees worldwide, Complainant offers truly global access to financial markets and advice. In 2020, Complainant had net revenues of over US$ 48,000,000,000. Complainant has rights in the MORGAN STANLEY mark through its registration in the United States in 1992. The mark is registered elsewhere around the world and it is well known.
Complainant alleges that the disputed domain name is identical or confusingly similar to its MORGAN STANLEY mark as it consists of a misspelling of the mark (the letters “s” and “t” are transposed), merely adding the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain names, nor has Complainant authorized or licensed Respondent to use its MORGAN STANLEY mark. Respondent does not use the disputed domain names for any bona fide offerings of goods or services, nor any legitimate noncommercial or fair uses, but instead hosts parked, pay-per-click links to services unrelated to those of Complainant on the disputed domain name’s resolving website. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent hosts unrelated parked, pay-per-click links on the disputed domain name’s resolving website. Respondent registered the disputed domain names with actual knowledge of Complainant’s rights in the MORGAN STANLEY mark. Respondent typosquats with the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark MORGAN STANLEY dating back to at least 1992 and uses it to provide banking and financial services around the world.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain names to resolve to a web site that contains pay-per-click advertising links to services that are not related to those of Complainant.
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”).
The disputed domain name consists of a misspelling of Complainant’s MORGAN STANLEY mark (the letters “s” and “t” are transposed), merely adding the “.com” generic top-level domain (“gTLD”). Transposing letters in a domain name and adding the “.com” gTLD is generally sufficient in demonstrating that a domain name is identical or confusingly similar to the mark it incorporates under Policy ¶ 4(a)(i). See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA 1626253 (Forum July 29, 2015) (finding that “Respondent has simply transposed the letters ‘u’ and ‘r’ in the term ‘furniture’ to complete the [<ashleyfurnitrue.com>] domain name. The addition of a descriptive term, such as ‘furniture’, even if misspelled, does not negate a finding of confusing similarity under Policy ¶ 4(a)(i).”). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), where a response is lacking, relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name. See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sept. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”). Here, the WHOIS of record identifies the registrant as “wencheng jian”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website hosts pay-per-click hyperlinks to services that are not related to those offered by Complainant. Under Policy ¶¶ 4(c)(i) and (iii), using a disputed domain name to host unrelated parked, pay-per-click links is generally not considered a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Ferring B.V. v. Shanshan Huang / Melissa Domain Name Services, FA1505001620342 (Forum July 1, 2015) (“Placing unrelated third party links for the benefit of a respondent indicates a lack of a bona fide offering of goods or services, and a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), respectively.”). Therefore the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services, or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving website displays unrelated advertising hyperlinks. Under Policy ¶ 4(b)(iii) and/or (iv), using a disputed domain name to host parked pay-per-click links may be considered evidence of bad faith disruption for commercial gain. See Plain Green, LLC v. wenqiang tang, FA1505001621656 (Forum July 1, 2015) (finding that the respondent’s use of the disputed domain name to feature generic third-party hyperlinks constituted bad faith according to Policy ¶ 4(b)(iv)); see also Bank of Am. Fork v. Shen, FA 699645 (Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); see also PopSockets LLC v. san mao, FA 1740903 (Forum Aug. 27, 2017) (finding disruption of a complainant’s business which was not directly commercial competitive behavior was nonetheless sufficient to establish bad faith registration and use per Policy ¶ 4(b)(iii)); see also Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained). Therefore the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶¶ 4(b) (iii) and/or (iv).
Further, Respondent engages in typosquatting: the disputed domain name is a misspelling of Complainant’s mark. Typosquatting, or registering a disputed domain name with a slightly misspelled version of a mark to divert internet users to a disputed domain name who misspell the mark is generally considered evidence of bad faith under Policy ¶ 4(a)(iii). See Webster Financial Corporation and Webster Bank, National Association v. IS / ICS INC, FA 16070016833 (Forum Aug. 11, 2016) (“Typosquatting is a practice whereby a domain name registrant, such as Respondent, deliberately introduces typographical errors or misspellings into a trademark and then uses the string in a domain name. The conniving registrant wishes and hopes that Internet users will inadvertently type the malformed trademark or read the domain name and believe it is legitimately associated with the target trademark. In doing so, wayward Internet users are fraudulently directed to a web presence controlled by the confusingly similar domain name’s registrant.”). Therefore the Panel finds that Respondent registered and uses the disputed domain name in bad faith under 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 <morgantsanley.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: April 27, 2022
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