DECISION

 

Morgan Stanley v. Lisa. G.Gomez

Claim Number: FA2404002091267

 

PARTIES

Complainant is Morgan Stanley ("Complainant"), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York, USA. Respondent is Lisa. G.Gomez ("Respondent"), Minnesota, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <morganstenleys.com> ('the Domain Name'), registered with Squarespace Domains II LLC.

 

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.

 

Dawn Osborne as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on April 1, 2024; Forum received payment on April 1, 2024.

 

On April 2, 2024, Squarespace Domains II LLC confirmed by e-mail to Forum that the <morganstenleys.com> Domain Name is registered with Squarespace Domains II LLC and that Respondent is the current registrant of the name. Squarespace Domains II LLC has verified that Respondent is bound by the Squarespace Domains II 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 April 2, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 22, 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@morganstenleys.com. Also on April 2, 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 response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.

 

On April 23, 2024 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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's contentions can be summarised as follows:

 

Complainant is the owner of the mark MORGAN STANLEY, registered, inter alia, in the USA for financial services with first use recorded as 1935. 

 

The Domain Name registered in 2024 is confusingly similar to Complainant's mark substituting a letter 'e' for the letter 'a', adding a letter 's' and adding the gTLD .com none of which prevents the said confusing similarity.

 

Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by Complainant.

 

The Domain Name does not resolve to any website but has been used for a fraudulent e-mail scheme using the name of one of Complainant's financial advisors. This cannot be a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is opportunistic registration and use in bad faith. Typosquatting per se is bad faith registration and use.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant is the owner of the mark MORGAN STANLEY, registered, inter alia, in the USA for financial services with first use recorded as 1935.

 

The Domain Name registered in 2024 does not resolve to any website but has been used for a fraudulent e-mail scheme using Complainant's mark spelt incorrectly and the name of one of Complainant's financial advisors. The name of Complainant's financial advisor has been submitted as the name of Respondent in the WhoIs details for the Domain Name.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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.").

 

Identical and/or Confusingly Similar

The Domain Name consists of a sign confusingly similar to Complainant's MORGAN STANLEY mark (which is registered in the USA for financial services with first use recorded as 1935) substituting a letter 'e' for a letter 'a', and adding a letter 's' and the gTLD .com. 

 

The Panel agrees that visually similar misspellings of a complainant's mark in a domain name do not prevent confusing similarity between that domain name and the complainant's trademark pursuant to the Policy. See Acme Lift Company, L.L.C. v. VistaPrint Technologies Ltd, FA 1607039 (Forum Apr. 11, 2015) (stating, "Where a respondent has created a domain name in an effort to visually deceive Internet users via a simple misspelling (and when such misspellings are visually similar to the mark), a finding of confusing similarity under Policy ¶ 4(a)(i) is appropriate."). As such substituting a letter 'e' for a letter 'a' and adding a letter 's' does not prevent the Domain Name being confusingly similar to Complainant's trademark under the Policy.

 

The gTLD .com does not serve to distinguish a domain name from a complainant's mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark). 

 

Accordingly, the Panel holds that the Domain Name is confusingly similar to Complainant's registered mark.

 

As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied. 

 

Rights or Legitimate Interests

Complainant has not authorised the use of its mark. There is no evidence or reason to suggest Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA 1574905 (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).

 

The Domain Name has been used in a fraudulent phishing attempt using the MORGAN STANLEY name spelt incorrectly and the name of one of the Complainant's financial advisors. This is deceptive and confusing and amounts to passing off. As such it cannot amount to the bona fide offering of goods and services or a legitimate noncommercial or fair use. See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (finding that "Passing off in furtherance of a fraudulent scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.").

 

Typosquatting is also an indication of a lack of rights or a legitimate interests. See Chegg Inc. v. yang qijin, FA 1610050 (Forum Apr. 23, 2015) ("Users might mistakenly reach Respondent's resolving website by misspelling Complainant's mark. Taking advantage of Internet users' typographical errors, known as typosquatting, demonstrates a respondent's lack of rights or legitimate interests under Policy ¶ 4(a)(ii).").

 

As such the Panelist finds that Respondent does not have rights or legitimate interests in the Domain Name and that Complainant has satisfied the second limb of the Policy.

 

Registration and Use in Bad Faith

Impersonating a complainant by use of a complainant's mark in a fraudulent phishing attempt is disruptive and evinces bad faith registration and use. See Microsoft Corporation v. Terrence Green/ Whois Agent/Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding that respondent's use of the disputed domain name to send fraudulent e-mails constituted bad faith registration and use pursuant to Policy 4 (b)(iii)).

 

The Domain Name appears to be a typosquatting registration as found above. Typosquatting is an indication of bad faith per se. See Cost Plus Management Services, Inc. v. xushuaiwei, FA 1800036 (Forum Sep. 7, 2018) ("Typosquatting itself is evidence of relevant bad faith registration and use.").

 

Providing false information at the time of a domain name's registration may be evidence of a respondent's bad faith registration and use under Policy 4(a)(iii). See Farouk Systems, Inc. v. Jack King / SLB, FA 1618704 (Forum June 19, 2015) (finding bad faith registration and use pursuant to Policy ¶ 4(a)(iii) where the respondent had provided false contact information when registering the disputed domain name). Here in the context of phishing providing the name of Complainant's financial advisor in the WhoIs details in the Domain Name seems clearly in bad faith.

 

As such, the Panelist believes that Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under Paragraphs 4(b)(iii) and (iv). 

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <morganstenleys.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Dawn Osborne, Panelist

Dated: April 23, 2024