Bloomberg Finance L.P. v. Zhichao Yang
Claim Number: FA1304001496503
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by William M. Ried of Bloomberg L.P., New York, USA. Respondent is Zhichao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <combloomberg.com>, registered with GoDaddy.com, 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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 25, 2013; the National Arbitration Forum received payment on April 25, 2013.
On April 26, 2013, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <combloomberg.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 29, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 20, 2013 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@combloomberg.com. Also on April 29, 2013, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 29, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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
a. Complainant, Bloomberg Finance L.P., has become one of the largest providers of global financial news and data and related goods and services and is recognized and trusted worldwide as a leading source of financial information and analysis.
b. Complainant is the owner of trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the BLOOMBERG mark (e.g., Reg. No. 2,736,744, registered July 15, 2003).
c. Respondent’s domain name is confusingly similar to Complainant’s marks as it fully incorporates the BLOOMBERG mark and adds only the word “com.”
d. Respondent has no right or legitimate interest in the domain name.
i. There is no evidence to suggest that the Respondent currently listed on the WHOIS record is commonly known by the BLOOMBERG name.
ii. Respondent’s only use of the domain name is to point to a website that only provides advertising links.
e. Respondent registered and used the domain name in bad faith.
i. Respondent was aware of Complainant’s marks before registering the domain name.
f. Respondent registered the domain <combloomberg.com> on December 9, 2012.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Bloomberg Finance L.P. which list its address as New York, NY, USA. Complainant is the owner of USA and foreign registrations for the BLOOMBERG mark. Complainant has continuously used its mark since at least 2003 in connection with its provision of goods and services in the financial information industry. Complainant also operates its business on the internet through several websites it owns including, but not limited to, <bloomberg.com>, <bloomberg.net> and <bloomberg.org>.
Respondent is Zhichao Yang who’s address is listed as Hefei, Anhui, China. Respondent’s registrar’s address is listed as Scottsdale, AZ, USA. Respondent registered the disputed domain name on December 9, 2012.
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant, Bloomberg Finance L.P., alleges that it has become one of the largest providers of global financial news and data and related goods and services and is recognized and trusted worldwide as a leading source of financial information and analysis. Complainant argues that it is the owner of trademark registrations with the USPTO for the BLOOMBERG mark (e.g., Reg. No. 2,736,744, registered July 15, 2003). See Exhibit B. The Panel notes that although Respondent appears to reside in China, Policy ¶ 4(a)(i) does not require that Complainant register its mark in the country in which Respondent operates as long as Complainant demonstrates rights in a mark in some jurisdiction. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates and it is sufficient that the complainant can demonstrate a mark in some jurisdiction). The Panel finds that Complainant’s registration of the BLOOMBERG mark with the USPTO proves its rights in the mark pursuant to Policy ¶ 4(a)(i). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)).
Complainant contends that Respondent’s domain name is confusingly similar to Complainant’s marks as it fully incorporates the BLOOMBERG mark and adds only the word “com.” The Panel finds that the addition of a generic word does not negate confusing similarity under Policy ¶ 4(a)(i). See Borders Props., Inc. v. Hewitt, FA 114618 (Nat. Arb. Forum July 23, 2002) (“The added ‘com’ does not defeat a confusing similarity claim because it takes advantage of a common typographical error. It is a basic mistake to type ‘com’ twice without typing the period after the targeted search term . . . [t]herefore, Respondent’s domain name is confusingly similar to Complainant’s mark.”). The Panel also notes that Respondent adds the generic top-level domain (“gTLD”) “.com” to the disputed domain name. The Panel finds the addition of a gTLD to a domain name does not distinguish Respondent’s domain name from Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (holding that attaching a gTLD is “unable to create a distinction capable of overcoming a finding of confusing similarity”). The Panel finds that Respondent’s <combloomberg.com> domain name is confusingly similar to Complainant’s BLOOMBERG mark under Policy ¶ 4(a)(i).
Respondent makes no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element
The Panel recognizes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). The Complainant has met this burden.
Complainant claims that there is no evidence to suggest that the Respondent currently listed on the WHOIS record is commonly known by the BLOOMBERG name. The Panel notes that the WHOIS record lists “Zhichao Yang” as the registrant of the domain name. See Exhibit C. Complainant argues that it has not licensed or otherwise permitted Respondent to use Complainant’s marks or any of Complainant’s family of marks. Complainant asserts that it has not licensed or otherwise permitted Respondent to apply for or use any domain name incorporating those marks. The Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. 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).
Complainant contends that Respondent’s only use of the domain name is to point to a website that only provides advertising links. The Panel notes that Respondent’s <combloomberg.com> domain name provides hyperlinks to competing sites including “Dividend Paying Stocks,” “Stock and Shares,” “Penny Stock Market Quotes,” and others. See Exhibit H. The Panel finds that Respondent is not making a bona fide offering of goods and services under a Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) as it is using the domain name to provide competing hyperlinks. See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (holding that the respondent had not demonstrated a bona fide offering of goods or services or a legitimate noncommercial or fair use when “the website resolving from the disputed domain name displays links to travel products and services, which directly compete with Complainant’s business”).
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
Because the Respondent has not provided a response to this action the Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
The Complainant has proven this element.
Complainant argues that Respondent was aware of Complainant’s marks before registering the disputed domain name. Complainant contends that the <bloomberg.com> domain name was registered by Complainant on September 29, 1993, and has been in continuous use since 1993. Complainant asserts that it has a strong reputation and a high-profile presence in the financial and media sectors, and is the subject of substantial consumer recognition and goodwill. The Panel finds that Respondent had actual knowledge of Complainant's mark and rights and therefore that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Nat'l Patent Servs. Inc. v. Bean, FA 1071869 (Nat. Arb. Forum Nov. 1, 2007) ("[C]onstructive notice does not support a finding of bad faith registration."); see also Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent "actual knowledge of Complainant's mark when registering the disputed domain name").
Respondent makes no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
Because the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <combloomberg.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: June 11, 2013
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