Morgan Stanley v. Xie Jun / Xie Jun
Claim Number: FA1412001595242
Complainant is Morgan Stanley (“Complainant”), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York, USA. Respondent is Xie Jun / Xie Jun (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <morganstanleychina.cc>, registered with WEBCC.
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 National Arbitration Forum electronically on December 15, 2014; the National Arbitration Forum received payment on December 15, 2014.
On December 15, 2014, WEBCC confirmed by email to the National Arbitration Forum that the <morganstanleychina.cc> domain name is registered with WEBCC and that Respondent is the current registrant of the name. WEBCC has verified that Respondent is bound by the WEBCC 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 December 16, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 5, 2015 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@morganstanleychina.cc. Also on December 16, 2014, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 12, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 hundreds of offices in dozens of countries, including the United States and China. Complainant and its predecessors in interest have 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 and China. Complainant asserts that its mark has become well known to consumers as a result of its extensive use and promotion.
Complainant contends that the disputed domain name <morganstanleychina.cc> is confusingly similar to Complainant’s mark. Complainant further contends that Respondent has no rights or legitimate interests in respect of the disputed domain name, and that the domain name was registered and has been used in bad faith. In support thereof, Complainant states that Respondent has not engaged in any business or commerce under the name MORGAN STANLEY or the disputed domain name, nor used the domain name for any other legitimate purpose, and has not been commonly known thereby. Complainant states that Respondent is not a licensee of Complainant, and has never been authorized by Complainant to use its mark or the disputed domain name. Complainant states that the disputed domain name resolves to a website that purports to be an official Morgan Stanley website, containing Complainant’s marks and text plagiarized from Complainant’s legitimate website. Complainant alleges that Respondent is making a fraudulent use of the disputed domain name in an effort to “phish” for Internet users’ personal information. Complainant further alleges that Respondent’s registration of a domain name incorporating Complainant’s well-known mark and its use for this fraudulent purpose demonstrates bad faith on the part of Respondent.
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 has been 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(e), 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 (Nat. Arb. 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 corresponds to Complainant’s MORGAN STANLEY mark, with the space omitted and the geographic term “China” and country code top-level domain “.cc” appended. These alterations do not diminish the similarity between the domain name and Complainant’s mark. See, e.g., Morgan Stanley v. Shen Yong Bin / Yong Bin Shen, FA 1582400 (Nat. Arb. Forum Nov. 5, 2014) (finding <morganstanleychina.net> confusingly similar to MORGAN STANLEY); Morgan Stanley v. John Chen, FA 1502938 (Nat. Arb. Forum July 15, 2013) (finding <morganstanley-china.com> confusingly similar to MORGAN STANLEY); Morgan Stanley v. Zhu Xumei, FA 1554302 (Nat. Arb. Forum May 23, 2014) (finding <morganstanley.com.co> identical to MORGAN STANLEY); Morgan Stanley v. Lixue c/o Zhou Jian, FA 1492902 (Nat. Arb. Forum May 19, 2013) (finding <morganstanley.pw> identical to MORGAN STANLEY). The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark.
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 Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant’s mark without authorization, and apparently its sole use has been in connection with a website designed to exploit confusion with Complainant’s mark and mislead Internet users into providing personal information to Respondent for fraudulent purposes. See Morgan Stanley v. Shen Yong Bin / Yong Bin Shen, supra (finding lack of rights or legitimate interests in similar circumstances); Novartis AG v. Javapolis, Brian, FA 1543982 (Nat. Arb. Forum Mar. 14, 2014) (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 has been 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 use of the disputed domain name for what appears to be a “phishing” scheme that exploits confusion with Complainant’s mark is evidence of bad faith under paragraphs 4(b)(iii) and 4(b)(iv). See, e.g., Morgan Stanley v. Shen Yong Bin / Yong Bin Shen, supra; Novartis AG v. Javapolis, Brian, supra. The similarity between the disputed domain name and Complainant’s well-known and distinctive mark, along with the lack of any indication of any other purpose for which Respondent might have registered the domain name, persuades the Panel that Respondent registered the domain name with the intention of targeting Complainant or its mark. 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 <morganstanleychina.cc> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: January 12, 2015
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