Bloomberg Finance L.P. v. Aleksy Godula
Claim Number: FA2109001967153
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by Melonie Callender of Bloomberg L.P., New York, USA. Respondent is Aleksy Godula (“Respondent”), Poland.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cryptobloomberg.net>, registered with NameCheap, Inc.
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 September 30, 2021; the Forum received payment on September 30, 2021.
On October 1, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <cryptobloomberg.net> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 5, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 25, 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@cryptobloomberg.net. Also on October 5, 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 October 28, 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, Bloomberg Finance L.P., is one of the largest providers of global financial news and data and related goods and services.
Complainant maintains registration in the BLOOMBERG mark with multiple authorities including the United States Patent and Trademark Office (“USPTO”).
The at-issue domain name, <cryptobloomberg.net>, is identical or confusingly similar to Complainant’s BLOOMBERG mark because it wholly incorporates Complainant’s BLOOMBERG mark while adding the term “crypto” and the “.net” generic top-level domain (“gTLD”) to form the domain name.
Respondent does not have any rights or legitimate interests in the <cryptobloomberg.net> domain name because Respondent is not commonly known by the <cryptobloomberg.net> domain name nor has Respondent been authorized to use Complainant’s BLOOMBERG mark. Respondent is not using the <cryptobloomberg.net> domain name in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use because Respondent has not made any demonstrable preparations to use the <cryptobloomberg.net> domain name.
Respondent registered and uses the <cryptobloomberg.net> domain name in bad faith because Respondent did not respond to Complainant’s cease-and-desist letter. Respondent also acted with actual knowledge of Complainant’s rights in the BLOOMBERG mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in its BLOOMBERG mark.
Respondent has not been authorized to use Complainant’s trademark.
Respondent registered the at-issue domain name after Complainant acquired rights in BLOOMBERG.
Respondent holds the at-issue domain name passively.
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’s USPTO registration of its BLOOMBERG mark, as well as other national registrations of such mark worldwide, establishes Complainant’s rights in such mark for the purposes of Policy 4(a)(i). See Alibaba Group Holding Limited v. YINGFENG WANG, FA 1568531 (Forum Aug. 21, 2014) (“Complainant has rights in the ALIBABA mark under the Policy through registration with trademark authorities in numerous countries around the world.”).
The at-issue domain name contains Complainant’s BLOOMBERG trademark prefixed with the term “crypto” and with all followed by the “.net” top-level domain name. The differences between the <cryptobloomberg.net> domain name and Complainant’s trademark are insufficient to distinguish the domain name from Complainant’s trademark under Policy ¶ 4(a)(i). Therefore, the Panel finds that the <cryptobloomberg.net> domain name is confusingly similar to Complainant’s BLOOMBERG mark. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”).
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, absent evidence of Policy ¶ 4(c) circumstances 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. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
The WHOIS information for <cryptobloomberg.net> indicates that “Aleksy Godula” is the domain name’s registrant. Further, there is nothing in the record that indicates that Respondent is otherwise known by the <cryptobloomberg.net> domain name. Given the foregoing, the Panel finds that Respondent is not commonly known by the at-issue domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent holds the <cryptobloomberg.net> passively as browsing to <cryptobloomberg.net> returns an error message. Passively holding the confusingly similar domain name is not indicative of a bona fide offering of goods or services under Policy ¶¶ 4(c)(i), nor of a non-commercial or fair use under Policy ¶¶ 4(c)(iii). See CrossFirst Bankshares, Inc. v. Yu-Hsien Huang, FA 1785415 (Forum June 6, 2018) (“Complainant demonstrates that Respondent fails to actively use the disputed domain name as it resolves to an inactive website. Therefore, the Panel finds that Respondent fails to actively use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).”); see also, Michelin North America, Inc. v. Energie Media Group, FA 451882 (Forum Aug. 7, 2012) (finding that inactive use, or “passive holding,” of the disputed domain name by a respondent permits the inference that the respondent lacks rights and legitimate interests in the domain names).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
Respondent’s <cryptobloomberg.net> domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present that permit the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
Respondent holds the at issue domain name passively. Respondent’s passive holding of confusingly similar <cryptobloomberg.net> domain name indicates Respondent’s bad faith under Policy ¶ 4(a)(iii). See Dermtek Pharmaceuticals Ltd. v. Sang Im / Private Registration, FA1310001522801 (Forum Nov. 19, 2013) (holding that because the respondent’s website contained no content related to the domain name and instead generated the error message “Error 400- Bad Request,” the respondent had registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii)); see also, Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018) (“Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent uses the domain name to host an inactive website.”).
Moreover, Respondent had actual knowledge of Complainant’s rights in the BLOOMBERG mark at the time it registered <cryptobloomberg.net> as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s BLOOMBERG trademark and from Respondent’s incorporation of Complainant’s trademark into the <cryptobloomberg.net> domain name along with the term “crypto” which suggests “cryptocurrency,” a reference to Complainant’s business focus on finance related data. Respondent’s registration and use of <cryptobloomberg.net> with knowledge of Complainant’s rights in such domain name further 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).
Finally, and although not materially essential to the ultimate disposition of this case, Complainant claims that Respondent’s failure to respond to Complainant’s cease-and-desist email shows Respondent’s bad faith under Policy ¶ 4(a)(iii). See Seiko Epson Corporation v. Ashish Sen, FA 1702054 (Forum Dec. 12, 2016) (finding that failing to respond to a cease-and-desist demand letter constitutes bad faith). However, it not clear that Complainant’s cease-and-desist demand was received by the nominal Respondent, Aleksy Godula, since it appears from the relevant exhibit proffered by Complainant that Complainant addressed its email demand to a privacy protection service rather than to Respondent itself. Without evidence of the relevant legal relationship between the privacy service and Respondent, or other evidence directly showing that the nominal Respondent was actually or constructively aware of Complainant’s demands prior to being given notice of the instant UDRP dispute, the Panel is reluctant to find the necessary predicate -that Respondent in fact knew of Complainant’s demand- before considering any implications from Respondent’s lack of a response thereto.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cryptobloomberg.net> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: October 29, 2021
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