DECISION

 

Morgan Stanley Domestic Holdings, LLC v. Ben Aune

Claim Number: FA2403002087533

 

PARTIES

Complainant is Morgan Stanley Domestic Holdings, LLC ("Complainant"), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York, USA. Respondent is Ben Aune ("Respondent"), New Jersey, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <etradersfx.com>, registered with Dynadot Inc.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on March 7, 2024; Forum received payment on March 7, 2024.

 

On March 8, 2024, Dynadot Inc confirmed by e-mail to Forum that the <etradersfx.com> domain name is registered with Dynadot Inc and that Respondent is the current registrant of the name. Dynadot Inc has verified that Respondent is bound by the Dynadot 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 11, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 1, 2024 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@etradersfx.com. Also on March 11, 2024, 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 formal response from Respondent, Forum transmitted to the parties a Notification of Respondent Default. Respondent did however send emails to the Forum, see below.

 

On April 2, 2024, 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

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 provides cryptocurrency investment services. Complainant employs thousands of individuals 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 incorporates the mark in its entirety (minus the asterisk), merely adding the letters "s" and "fx" (which stands for "foreign exchange"), 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, the disputed domain name resolves to a website that prominently displays the name and mark "E-TRADERS", which is confusingly similar to Complainant's mark, and purports to offer financial services—including cryptocurrency investment and trading services—that are identical or closely related to the services offered by Complainant, ostensibly in an effort to make consumers believe that Respondent's site is somehow affiliated with Complainant. However, the resolving website appears to be offering fake financial services: the resolving website displays several photos of purported client testimonials; however, an online search of the photos of several of these individuals shows that their photos appear on other several other ostensibly fake crypto trading websites as well. In addition, the resolving website site lists its address as "1721 S Santa Monica St, Deming, New York, United States Of America"; however, Deming, New York does not exist. 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, to purport to offer competing financial services (but the services are fake), and to engage in phishing. Respondent registered the disputed domain name with 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 formal Response in this proceeding. In its emails to Forum, Respondent states, in pertinent part: "I will indulge the client to start a cancellation process for the domain."

 

FINDINGS

For the reasons set forth below, the Panel will not make any findings of fact. The Panel however notes, obiter dictum, that the evidence set forth in the Complaint would appear to support Complainant's allegations.

 

DISCUSSION

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.

 

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."

 

The Panel interprets Respondent's email to Forum as indicating consent to transfer the disputed domain name. Thus, in the present case, the parties have both asked for the domain name to be transferred to the Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.

 

See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also Boehringer Ingelheim Int'l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) ("[U]nder such circumstances, where Respondent has agreed to comply with Complainant's request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.").

 

Identical and/or Confusingly Similar

For the reasons set forth above, the Panel will not analyze this element of the Policy.

 

Rights or Legitimate Interests

For the reasons set forth above, the Panel will not analyze this element of the Policy.

 

Registration and Use in Bad Faith

For the reasons set forth above, the Panel will not analyze this element of the Policy.

 

DECISION

Given the common request of the Parties, it is Ordered that the <etradersfx.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist

Dated: April 2, 2024