Morgan Stanley Domestic Holdings, Inc. v. Elewa Loveday
Claim Number: FA2306002049099
Complainant is Morgan Stanley Domestic Holdings, Inc. (“Complainant”), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York, USA. Respondent is Elewa Loveday (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <etradebroker.com>, registered with Hostinger, UAB.
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 Forum electronically on June 14, 2023; Forum received payment on June 14, 2023.
On June 15, 2023, Hostinger, UAB confirmed by e-mail to Forum that the <etradebroker.com> domain name is registered with Hostinger, UAB and that Respondent is the current registrant of the name. Hostinger, UAB has verified that Respondent is bound by the Hostinger, UAB 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 15, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 5, 2023 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@etradebroker.com. Also on June 15, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On July 11, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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 states that it operates in the financial services industry. Complainant originated as a platform that allowed retail investors to trade stocks online. Today, Complainant provides a suite of digital financial services for investors, traders, financial advisors, stock plan participants, and stock plan administrators. Complainant employs more than 4,100 individuals, has 30 retail branches across the United States, and provides services to millions of customers. Complainant asserts rights to the E*TRADE mark based upon its registration in the United States in 1996.
Complainant alleges that the disputed domain name is confusingly similar to its E*TRADE mark as it consists of the mark minus the asterisk, merely adding the generic/descriptive term “broker”, and the generic top-level domain (“gTLD”) “.com”. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s E*TRADE mark and is not commonly known by the disputed domain name. Respondent does not use the disputed domain name for a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to pass off as Complainant by purporting to offer competing financial services. However, the financial services offered via Respondent’s website are fake: Respondent’s website displays a purported certificate of incorporation for E TRADE BROKER, a company purportedly incorporated under the laws of the United Kingdom; however, an online search of the UK Financial Conduct Authority Register for “E TRADE BROKER” yielded no matching results. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent registered and uses the disputed domain name to pass off as Complainant by purporting to offer competing financial services; however, the financial services offered via Respondent’s website are fake. Respondent registered and uses the disputed domain name to create initial interest confusion in internet users. Respondent registered the disputed domain name with constructive and/or actual knowledge of Complainant’s rights in the E*TRADE mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark E*TRADE and uses it to provide financial services.
Complainant’s rights in its mark date back to 1996.
The disputed domain name was registered in 2023.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website purports to offer financial services that compete with those of Complainant; however, the financial services offered via Respondent’s website are fake.
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 incorporates Complainant’s E*TRADE mark minus the asterisk, merely adding the generic/descriptive term “broker”, and the generic top-level domain (“gTLD”) “.com”. Such changes are not sufficient to distinguish the domain name from the mark under Policy ¶ 4(a)(i). See Mrs. World Pageants, Inc. v. Crown Promotions, FA 94321 (Forum Apr. 24, 2000) (finding that punctuation is not significant in determining the similarity of a domain name and mark); 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 Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)). Thus the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Respondent is not licensed or otherwise authorized to use Complainant’s E*TRADE mark and is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. 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 Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). Here, the WHOIS information for the disputed domain name lists the registrant as “Elewa Loveday”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).
Complainant presents evidence showing that the resolving website purports to offer financial services that compete with those of Complainant. However, the financial services offered via Respondent’s website are fake: the resolving website displays a purported certificate of incorporation for E TRADE BROKER, a company purportedly incorporated under the laws of the United Kingdom; however, an online search of the UK Financial Conduct Authority Register for “E TRADE BROKER” yielded no matching results. The use of a domain name to sell products or services that compete directly with a complainant’s business, or to offer fake products or services, does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”); see also Glaxo Group Ltd. v. WWW Zban, FA 203164 (Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting Internet users to a competing commercial site); see also Acton Educational Services d/b/a West Coast Univ. v. West Coast Univ. Int’l Inc., FA 1191541 (Forum July 2, 2008) (website offering fake educational services was not a legitimate use of domain name). As such, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a noncommercial or fair use under Policy ¶ 4(c)(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 purports to offer financial services that compete with those of Complainant; however, the financial services offered via Respondent’s website are fake. The use of a disputed domain name to offer products or services similar to a complainant’s, or to offer fake services, evinces an intent to attract internet users for commercial gain per Policy ¶ 4(b)(iv). See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”); see also Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA1409001579141 (Forum Oct. 15, 2014) (“Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant.”); see also Bridgewater Associates, LP v. Mike Manning, FA2112001976062 (Forum Jan. 4, 2022) (finding bad faith registration and use where the resolving website was offering fake financial services). As such, the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <etradebroker.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 11, 2023
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