Morgan Stanley v. PETERS PROMISE
Claim Number: FA2306002047489
Complainant is Morgan Stanley ("Complainant"), United States, represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York, United States. Respondent is PETERS PROMISE ("Respondent"), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <norgamstaney.com>, registered with NameSilo, 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to Forum electronically on June 5, 2023; Forum received payment on June 5, 2023.
On June 5, 2023, NameSilo, LLC confirmed by email to Forum that the <norgamstaney.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 June 6, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 26, 2023 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@norgamstaney.com. Also on June 6, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On June 29, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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, and over 55,000 employees worldwide. 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 MORGAN STANLEY 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 <norgamstaney.com> in April 2023. The domain name currently does not resolve to a website. Until recently, it was being used for a website that was nearly identical to Complainant's official website, including Complainant's marks, logos, website content, and photos. Complainant states that Respondent is not commonly known by the domain name, is not a licensee of Complainant nor authorized to use Complainant's name or mark, and has no relationship whatsoever to Complainant. Complainant characterizes the disputed domain name as an instance of typosquatting.
Complainant contends on the above grounds that the disputed domain name <norgamstaney.com> is confusingly similar to its MORGAN STANLEY mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <norgamstaney.com> incorporates Complainant's registered MORGAN STANLEY trademark, rearranging two letters (exchanging the "M" and the first "N"), omitting another letter (the "L") and the space, 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., Morgan Stanley v. Wencheng Jian, FA 1990400 (Forum Apr. 27, 2022) (finding <omrganstanley.com> confusingly similar to MORGAN STANLEY); Morgan Stanley v. Web Services Pty, FA 1306492 (Forum Mar. 29, 2010) (finding <norganstanley.com> confusingly similar to MORGAN STANLEY); Morgan Stanley v. Unasi Inc., FA 610162 (Forum Feb. 1, 2006) (finding <morganstaley.com>, <morganstnaley.com>, and similar domain names confusingly similar to MORGAN STANLEY). The Panel considers the disputed 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 Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and its sole apparent use has been for a website that attempted to pass off as Complainant, likely in support of a phishing scheme or other fraudulent conduct. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Morgan Stanley v. Eric Masoko, FA 1945048 (Forum June 10, 2021) (finding lack of rights or interests in similar circumstances); Morgan Stanley v. MorganStanleyclub, FA 1826100 (Forum Feb. 26, 2019) (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 any 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 registered a domain name corresponding to a misspelling of Complainant's well-known mark, in an obvious instance of typosquatting, and has used the domain name to pass off as Complainant, likely in connection with a phishing scheme or other fraudulent conduct. Such circumstances are indicative of bad faith registration and use under the Policy. See, e.g., Morgan Stanley v. Wencheng Jian, supra (finding bad faith registration and use in similar circumstances); Morgan Stanley v. Eric Masoko, supra (same); Morgan Stanley v. MorganStanleyclub, supra (same); Morgan Stanley v. Web Services Pty, 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 <norgamstaney.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: June 29, 2023
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