Bloomberg Finance L.P. v. George Ikhtiari
Claim Number: FA1305001498714
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by William M. Ried of Bloomberg L.P., New York, USA. Respondent is George Ikhtiari (“Respondent”), Illinois, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bloombergtalk.com>, registered with Melbourne IT, Ltd. d/b/a Internet Names Worldwide.
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 May 8, 2013; the National Arbitration Forum received payment on May 8, 2013.
On May 9, 2013, Melbourne IT, Ltd. d/b/a Internet Names Worldwide confirmed by e-mail to the National Arbitration Forum that the <bloombergtalk.com> domain name is registered with Melbourne IT, Ltd. d/b/a Internet Names Worldwide and that Respondent is the current registrant of the name. Melbourne IT, Ltd. d/b/a Internet Names Worldwide has verified that Respondent is bound by the Melbourne IT, Ltd. d/b/a Internet Names Worldwide 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 May 10, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 30, 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@bloombergtalk.com. Also on May 10, 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 June 6, 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.
Complainant
A. Complainant contends that it has rights in the BLOOMBERG mark, used in connection with financial news and data. Complainant alleges it is the owner of registrations for the BLOOMBERG mark (e.g., Reg. No. 2,736,744 registered July 15, 2003) with the United States Patent and Trademark Office (“USPTO”). See Complainant’s Exhibit B.
B. Complainant has used its BLOOMBERG mark extensively, such that the name has achieved a secondary meaning in connection with Complainant’s business.
C. Respondent’s <bloombergtalk.com> domain name is confusingly similar to Complainant’s mark.
a. The disputed domain name fully incorporates Complainant’s mark while adding the work “talk.”
D. Respondent has no rights or legitimate interests in the disputed domain name.
a. Complainant has not permitted or otherwise licensed Respondent to use Complainant’s mark.
b. Complainant sent a “demand letter” to Respondent’s email address found in the WHOIS information, and Respondent never replied to this letter.
c. There is no evidence in the WHOIS record that Respondent is commonly known by the disputed domain name.
d. The disputed domain name is not being used in a connection with a bona fide offering of goods or services, and Respondent cannot claim a legitimate noncommercial or fair use.
i. The disputed domain name resolves to a website that does not appear to offer any goods or services. The resolving website includes references to “Sample Product Name,” paragraphs in Latin, and links to “Forums,” “Recent content,” “Log In,” and “Register.” See Complainant’s Exhibit H.
e. Respondent registered the <bloombergtalk.com> domain name on January 14, 2013.
E. Respondent registered and used the disputed domain name in bad faith.
a. Complainant presumes was aware of Complainant’s mark before registering the disputed domain name because of Complainant’s continuous use of the mark since 1993.
Respondent
A. 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 George Ikhtiari who’s address is listed as Chicago, IL, USA. Respondent’s registrar’s address is listed as Melbourne, Australia. Respondent registered the <bloombergtalk.com> domain name on January 14, 2013.
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 contends that it owns rights in the BLOOMBERG mark, which it uses in connection with financial news and data. Complainant alleges it is the owner of registrations for the BLOOMBERG mark (e.g., Reg. No. 2,736,744 registered July 15, 2003) with the USPTO. See Complainant’s Exhibit B. The Panel finds that as a result of Complainant’s USPTO trademark registration, Complainant has demonstrated its rights in the BLOOMBERG mark under Policy ¶ 4(a)(i). See Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations).
Complainant next alleges that Respondent’s <bloombergtalk.com> domain name is confusingly similar to Complainant’s BLOOMBERG mark. Complainant argues the disputed domain name fully incorporates Complainant’s mark while adding the work “talk.” The Panel notes that the disputed domain name includes the gTLD “.com.” The Panel finds that the generic term “talk” does not distinguish the disputed domain name from Complainant’s mark. See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term). The Panel also finds that the gTLD “.com” is irrelevant to Policy ¶ 4(a)(i) analysis. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). The Panel finds that Respondent’s <bloombergtalk.com> domain name is confusingly similar to Complainant’s BLOOMBERG mark.
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 alleges that there is no evidence in the WHOIS record that Respondent is commonly known by the disputed domain name. Further, Complainant states that it has not permitted or otherwise licensed Respondent to use Complainant’s mark. The Panel notes that the WHOIS record for the <bloombergtalk.com> domain name identifies “George Ikhtiari” as the domain name registrant. Panels have held that the WHOIS record is often determinative of whether a respondent is known by a domain name. See Tercent Inc. v. Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply). The Panel finds that Respondent is not commonly known by the <bloombergtalk.com> domain name.
Complainant alleges that the disputed domain name is neither being used in connection with a bona fide offering of goods or services, nor can Respondent claim a legitimate noncommercial or fair use of the domain name. Complainant notes that the disputed domain name resolves to a website that does not appear to offer any goods or services. The Panel notes that the resolving website includes references to “Sample Product Name,” paragraphs in Latin, and links to “Forums,” “Recent content,” “Log In,” and “Register.” See Complainant’s Exhibit H. The Panel finds that such use of the domain name improperly interferes with Complainant’s business. See Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Nat. Arb. Forum Dec. 6, 2003) (“Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).”). The Panel finds that Respondent’s use of the <bloombergtalk.com> domain name is neither a Policy ¶4(c)(i) bona fide offering of goods or services nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use.
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.
The Panel is reminded that the factors set forth in Policy ¶ 4(b) do not constitute an exhaustive list of circumstances in which the Panel may find evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“[T]he examples [of bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive.”). Therefore, the Panel may look beyond those factors listed in Policy ¶ 4(b) to determine bad faith registration and use under Policy ¶ 4(a)(iii). See Channel Tunnel Group Ltd. v. Powell, D2000-0038 (WIPO Mar. 17, 2000) (“[J]ust because Respondent’s conduct does not fall within the ‘particular’ circumstances set out in [¶ 4(b)] of the Policy, is not conclusive that the [<euro-tunnel.com>] domain name in issue was registered in and is being used in bad faith.”)
Complainant alleges the Respondent registered and uses the disputed domain name in bad faith. Complainant presumes Respondent was aware of Complainant’s mark before registering the disputed domain name because of Complainant’s continuous use of the mark since 1993. Complainant’s mark is known domestically and internationally in a variety of forums including the internet. While constructive notice is generally regarded as insufficient to support a finding of bad faith, the Panel concludes that Respondent had actual notice of Complainant's mark and thus registered the disputed domain names in bad faith under Policy ¶ 4(a)(iii). See Sears Brands, LLC v. Airhart, FA 1350469 (Nat. Arb. Forum Dec. 2, 2010) (stating that constructive notice generally will not suffice for a finding of bad faith); see also Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration)."
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 <bloombergtalk.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: June 16, 2013
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