Join Date: Apr 2005
Morgan Stanley Vs Meow (Felix domesticus)
Morgan Stanley v. Meow |
Claim Number: FA0604000671304
Complainant is Morgan Stanley (“Complainant”), represented by Baila H. Celedonia, of Cowan, Liebowitz & Latman, P.C., 1133 Avenue of the Americas, New York, NY 10036-6799. Respondent is Meow (“Respondent”), Baroness Penelope Cat of Nash DCB, Ashbed Barn, Boraston Track, Tenbury Wells, Worcestershire WR15 8LQ, GB.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mymorganstanleyplatinum.com>, registered with Tucows Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 3, 2006; the National Arbitration Forum received a hard copy of the Complaint on April 5, 2006.
On April 4, 2006, Tucows Inc. confirmed by e-mail to the National Arbitration Forum that the <mymorganstanleyplatinum.com> domain name is registered with Tucows Inc. and that the Respondent is the current registrant of the name. Tucows Inc. has verified that Respondent is bound by the Tucows Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On April 13, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of May 3, 2006 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to firstname.lastname@example.org by e-mail.
A Response was received on May 4, 2006 and determined to be deficient because it was received after the deadline for Response.
On May 10, 2006, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Richard Hill as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant alleges that it is an international leader in investment banking and financial services, founded in 1935. It is the owner of the MORGAN STANLEY family of marks, some of which are among the most famous marks in the financial world. Complainant owns registered marks in many countries in the world. It offers credit cards under the name “Platinum.”
According to Complainant, the disputed domain name is confusingly similar to its MORGAN STANLEY mark. Further, it alleges that Respondent has no rights or legitimate interest in the disputed domain name. The disputed domain name is used by one Mr. Woods to teach a class to demonstrate how companies (such a Complainant) do not register obvious domain names.
According to Complainant, the WHOIS information for the disputed domain name is fictitious and/or false.
Respondent alleges that it is a cat (sic: the domestic pet). According to Respondent, it allows Mr. Woods (a human) to use the domain name registration in providing a service. Complainant incorrectly states that Mr. Woods teaches a class, as the Complainant is well aware Mr. Woods is a business consultant, the audience for his seminars are senior management of small and medium sized business, not a class.
According to Respondent, Mr. Woods was certainly not angry about a Complaint being filed but very surprised that Complainant had used the name but had still failed to register it. These two items are mutually exclusive; one cannot use the domain name and not use the domain name at the same time. It adds: “I do not in my private or my business life do anything in bad faith. I consider the statement an insult and a deformation of my character.”
Respondent cites Morgan Stanley v. Michael Woods, FA 604103 (Nat. Arb. Forum Jan. 16, 2005), in which the panel held that Complainant had failed to prove that the respondent acted in bad faith.
According to Respondent, the registration information is not false; there are an immense number of Domain Names registered by non human beings. Mr. Woods is not trying to conceal himself as if he were he wouldn’t be acting as my representative in this matter. Having the domain name registered by me allows Mr. Woods to introduce some humor into his presentations. The address is not incorrect as Ashbed Barn is a barn conversion close to Ashbed Cottage.
Complainant owns numerous registered trademarks containing the name MORGAN STANLEY.
The disputed domain name is being used for seminars regarding failure by large companies to register obvious domain names.
Complainant’s mark is very well-known.
Respondent is not a common cat, that is not a Felix domesticus.
Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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 the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the 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.
Before discussing the substantive issues, the Panel must rule on a procedural issue, because the Response was submitted one day late. The Panel elects to admit the late Response. See Bd. of Governors of the Univ. of Alberta v. Katz, D2000-0378 (WIPO June 22, 2000) (finding that a panel may consider a response which was one day late, and received before a panelist was appointed and any consideration made).
Identical and/or Confusingly Similar
The disputed domain name is obviously confusingly similar to Complainant’s well-known MORGAN STANLEY mark pursuant to Policy ¶ 4(a)(i).
Rights or Legitimate Interests
The disputed domain name is being used to teach seminars regarding failure by well-known companies to register obvious domain names. This use cannot be considered legitimate, because there is no reason actually to register such domain names in order to discuss such failures to register. It would suffice to find examples of unregistered obvious domain names and to present them to the participants. Thus, the Panel holds that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services in the sense of Policy ¶ 4(b)(i).
Respondent does not give any other justification for its use of the disputed domain name.
The Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii).
Registration and Use in Bad Faith
Respondent maintains that it is a cat, that is, a well-known carnivorous quadruped which has long been domesticated. However, it is equally well-known that the common cat, whose scientific name is Felis domesticus, cannot speak or read or write. Thus, a common cat could not have submitted the Response (or even have registered the disputed domain name). Therefore, either Respondent is a different species of cat, such as the one that stars in the motion picture “Cat From Outer Space,” or Respondent’s assertion regarding its being a cat is incorrect.
If Respondent is in fact a cat from outer space, then it should have so indicated in its reply, in order to avoid unnecessary perplexity by the Panel. Further, it should have explained why a cat from outer space would allow Mr. Woods to use the disputed domain name. In the absence of such an explanation, the Panel must conclude that, if Respondent is a cat from outer space, then it may have something to hide, and this is indicative of bad faith behavior.
On the other hand, if Respondent’s assertion regarding its being a cat is incorrect, then Respondent has undoubtedly attempted to mislead this Panel and has provided incorrect WHOIS information. Such behavior is indicative of bad faith. See Video Direct Distribs. Inc. v. Video Direct, Inc., FA 94724 (Nat. Arb. Forum June 5, 2000) (finding that the respondent acted in bad faith by providing incorrect information to the registrar regarding the owner of the registered name); see also Quixtar Invs., Inc. v. Smithberger, D2000-0138 (WIPO Apr. 19, 2000) (finding that use of false registration information constitutes bad faith).
Respondent cites Morgan Stanley v. Michael Woods, FA 604103 (Nat. Arb. Forum Jan. 16, 2005), in which the Panel found that Complainant had failed to prove bad faith registration and use. But that case must be distinguished from the present case, because in that case the Respondent was Mr. Woods, and not a cat or someone who has misled the Panel by pretending to be a cat.
The Panel finds that Respondent’s assertions that it is a cat provide sufficient evidence to conclude that the Respondent registered and is using the disputed domain name in bad faith. And this despite the fact that the Panel, unlike Queen Victoria, is amused.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mymorganstanleyplatinum.com> domain name be TRANSFERRED from Respondent to Complainant.
Quality UDRP that