Bloomberg Finance L.P. v. medeni unlu
Claim Number: FA2012001926970
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by Melonie Callender of Bloomberg L.P., New York, USA. Respondent is medeni unlu (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <thebloombergcollection.com>, registered with Dynadot, LLC.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 31, 2020; the Forum received payment on December 31, 2020.
On January 4, 2021, Dynadot, LLC confirmed by e-mail to the Forum that the <thebloombergcollection.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 January 12, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 1, 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@thebloombergcollection.com. Also on January 12, 2021, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On February 3, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant contends as follows:
Complainant uses the BLOOMBERG mark in connection with electronic trading, financial news, analytics, and information businesses.
Complainant has rights in the BLOOMBERG mark through Complainant’s registration of the mark with the United States Patent and Trademark Office (“USPTO”) as well as via other national trademark registrations worldwide.
Respondent’s <thebloombergcollection.com> is identical or confusingly similar to Complainant’s BLOOMBERG mark as it merely adds the words “the” and “collection.”
Respondent lacks rights or legitimate interests in the <thebloombergcollection.com> domain name. Respondent is not commonly known by the at-issue domain name nor has Respondent been authorized by Complainant to use the BLOOMBERG mark. Additionally, Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services as Respondent only uses the domain name to intentionally trade on the reputation of Complainant.
Respondent registered and uses the <thebloombergcollection.com> domain name in bad faith. Respondent had actual knowledge of Complainant’s rights to the BLOOMBERG mark prior to registering the at-issue domain name as Complainant has a strong reputation and a high-profile presence in the financial and media sectors.
B. Respondent
Respondent failed to submit a Response in these proceedings.
Complainant has trademark rights in the BLOOMBERG mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at-issue domain name after Complainant acquired rights in BLOOMBERG.
Respondent registered the at-issue domain name so that it could trade on the goodwill associated with Complainant’s well-known trademark.
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 at-issue domain is confusingly similar to a trademark in which Complainant has rights.
Complainant shows that it has multiple national registrations for its BLOOMBERG trademark. Any one of such registrations is sufficient to demonstrate Complainant’s rights in the BLOOMBERG mark under Policy ¶ 4(a)(i). See PineBridge Investments IP Holdings Limited v. uche victor, FA 1551301 (Forum May 6, 2014) (finding that Complainant’s registrations for the PINEBRIDGE mark with the USPTO, as well as the MIIP were sufficient to establish rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <thebloombergcollection.com> domain name contains Complainant’s BLOOMBERG trademark, preceded by the article “the” and followed by the generic word “connection,” with all followed by the top-level domain name “.com”. The differences between Respondent’s domain name and Complainant’s trademark are insufficient to distinguish the <thebloombergcollection.com> domain name from the BLOOMBERG trademark for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <thebloombergcollection.com> domain name is confusingly similar or identical to Complainant’s BLOOMBERG trademark. See MTD Products Inc. v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “medeni unlu” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <thebloombergcollection.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <thebloombergcollection.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
Additionally, Complainant claims Respondent holds the at-issue domain name to trade on the goodwill connected with Complainant’s trademark. Respondent fails to deny such claim, although Respondent was made aware of the claim by Complainant’s demand letter sent directly to Respondent and by Complainant’s instant UDRP complaint. As such, Respondent admits to the claim’s veracity by silence. Respondent’s use of the at-issue domain name to exploit the goodwill in Complainant’s trademark shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Pfizer Inc. v. Internet Gambiano Prods LLC., D2002-0325 (WIPO June 20, 2002) (finding that because the VIAGRA mark was “clearly well-known” at the time of the respondent’s registration of the domain name the panel could infer that the respondent acted for the purpose of “capitalizing on the confusion created by the domain name’s similarity to the [m]ark”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. Although Complainant has not made arguments under Policy ¶ 4(b), such arguments are not required under the Policy—so long as Complainant shows bad faith use and registration in some manner. See Digi Int’l Inc. v. DDI Sys., FA 124506 (Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith); see also Bloomberg Finance L.P. v. Nikita A Paskhalnyy / Private Person, FA 1638757 (Forum Nov. 5, 2015) (the panel noting that Policy ¶ 4(b) factors “are meant to be merely illustrative of bad faith, and that Respondent’s bad faith may be demonstrated under the totality of the circumstances”). As discussed below without limitation, evidence exists from which the Panel may conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
The Panel finds that Respondent had actual knowledge of Complainant’s rights in the BLOOMBERG mark when it registered <thebloombergcollection.com> as a domain name. Respondent’s actual knowledge is evident from the worldwide notoriety of Complainant’s mark and from the lack of any evidence in the record suggesting any benign rational for the confusingly similar domain name’s registration and use. Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s rights in such domain name shows Respondent’s bad faith pursuant to Policy ¶4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <thebloombergcollection.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: February 4, 2021
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