Msservicosfinanceiros.com

The timeline behind msservicosfinanceiros.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

DECISION Morgan Stanley v. Marcelo Augusto Dibbern / MS SERVICOS FINANCEIRO Claim Number: FA2110001968545 PARTIES Complainant is Morgan Stanley (“Complainant”), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York, USA. Respondent is Marcelo Augusto Dibbern / MS SERVICOS FINANCEIRO (“Respondent”), Brazil. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <msservicosfinanceiros.com> (“Domain Name”), registered with Automattic Inc. PANEL 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. Nicholas J.T. Smith as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the Forum electronically on October 11, 2021; the Forum received payment on October 11, 2021. The Complaint was received in English. On October 14, 2021, Automattic Inc. confirmed by e-mail to the Forum that the <msservicosfinanceiros.com> domain name is registered with Automattic Inc. and that Respondent is the current registrant of the name. Automattic Inc. has verified that Respondent is bound by the Automattic 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 October 18, 2021, the Forum served the English language Complaint and all Annexes, including a Portuguese Written Notice of the Complaint, setting a deadline of November 8, 2021 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@msservicosfinanceiros.com. Also on October 18, 2021, the Portuguese 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, the Forum transmitted to the parties a Notification of Respondent Default. On November 16, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Nicholas J.T. Smith as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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. PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING The language of the Registration Agreement in this case is Portuguese. The Complaint has been provided in English and Complainant has requested that the language of the proceeding be English. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Factors which previous panels have seen as particularly compelling are: WHOIS information which establishes Respondent in a country which would demonstrate familiarity with the English language, filing of a trademark registration with an entity which shows an understanding of the English language, and any evidence (or lack thereof) exhibiting Respondent’s understanding of the language requested by Complainant. See The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (panel exercising discretion in deciding that the language of the proceedings advance in English, contrary to the Registration Agreement, based on evidence that respondent has command of the language). Further, the Panel may weigh the relative time and expense in enforcing the Portuguese language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”) and Zappos.com, Inc. v. Zufu aka Huahaotrade, Case No. D2008-1191 (WIPO October 15, 2008) (holding that proceedings could be conducted in English even though the registration agreement was in Chinese where “the disputed domain resolves to a website [that] is exclusively in English, from which can be reasonably presumed that the Respondent has the ability to communicate in English in order to conduct his business over the website in English”) Convenience and expense are important factors in determining the language of a UDRP proceeding. Of paramount importance, however, is fundamental fairness. Requiring a party to conduct a UDRP proceeding in a language in which it is not proficient enough to enable it to do so, to understand the claims and defences asserted by the other party and to assert its own claims and defences, is simply not fair. In this case, the registration agreement is in Portuguese, the Domain Name contains words in the Portuguese language, the website to which the Domain Name resolves to is in Portuguese and the Respondent is based in Brazil. Complainant has provided no evidence of Respondent’s proficiency in English. Rather Complainant has asserted that the Respondent is capable of understanding English because the Domain Name uses the .com generic top-level domain and because the Respondent purports to provide financial services. These assertions do not amount to evidence of a level of proficiency sufficient to enable a party to participate in a contested administrative proceeding in any meaningful or effective way. Respondent failed to respond to the Written Notice of the Filing of the Complaint herein, which was sent to it in both the English and Portuguese languages, but in and of itself this is not sufficient cause to order the proceeding to continue in English. For the reasons set forth above, the Panel finds and determines that Complainant has failed to support its request for this proceeding to continue in English. DECISION Complainant’s request for these proceedings to continue in English is DENIED. Under the circumstances present in this case, the Panel concludes that ordering the Complaint to be translated into Portuguese and proceeding from this point in Portuguese, in which the Panel is not proficient, would be neither efficient nor productive. Accordingly, the Panel orders that the Complaint be dismissed, without prejudice. Complainant may if it so desires file a new Complaint and proceed in the Portuguese language, or provide persuasive, competent evidence that Respondent is proficient in English. Nicholas J.T. Smith, Panelist Dated: November 19, 2021 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.