Bloomberg Finance L.P. v. Muhammad Bussti
Claim Number: FA1309001519481
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by William M. Ried of Bloomberg L.P., New York, USA. Respondent is Muhammad Bussti (“Respondent”), United Arab Emirates.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bloombergarabia.tv>, registered with GoDaddy.com, LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electron-ically on September 13, 2013; the National Arbitration Forum received payment on September 13, 2013.
On September 13, 2013, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <bloombergarabia.tv> 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 Dis-pute Resolution Policy (the “Policy”).
On September 16, 2013, the Forum served the Complaint and all Annexes, in-cluding a Written Notice of the Complaint, setting a deadline of October 7, 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, adminis-trative, and billing contacts, and to postmaster@bloombergarabia.tv. Also on September 16, 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 Respond-ent’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 October 14, 2013, pursuant to Complainant's request to have the dispute de-cided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 Not-ices, 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
Complainant has operated under the Bloomberg name and mark since 1987,
and it is widely known for its high quality financial data, news and analysis.
Complainant and its subsidiary, Bloomberg Finance One L.P., hold registrations for the BLOOMBERG mark, on file with the United States Patent and Trademark Office (“USPTO”), including Registry No. 2,736,744, registered July 15, 2003.
Complainant owns the following domain names incorporating the BLOOMBERG mark: <bloomberg.com> registered September 29, 1993; <bloomberg.net> registered March 8, 1997; and <bloomberg.org> registered December 18, 1997.
Respondent registered the contested <bloombergarabia.tv> domain name on October 7, 2012.
The domain name is confusingly similar to Complainant’s BLOOMBERG mark.
Respondent has not been commonly known by the disputed domain name.
Complainant has not licensed or otherwise permitted Respondent to use its BLOOMBERG mark in any way.
Respondent uses the domain name to resolve to a website providing advertising links to third party websites unrelated to the business of Complainant.
Respondent is not making a bona fide offering of goods or services or a legiti-mate noncommercial or fair use of the domain name.
Respondent has no rights to or legitimate interests in the disputed domain name.
Respondent was aware of Complainant and its rights in the BLOOMBERG mark when it registered the disputed domain name.
Respondent registered and uses the disputed domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 can-celled or transferred:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. 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 representa-tions 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 Verti-cal Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that a respondent’s failure to respond allows all reason-able inferences of fact in the allegations of a UDRP 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 has rights in the BLOOMBERG trademark for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark auth-ority, the USPTO. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demon-strates a UDRP complainant’s rights in a mark under Policy ¶ 4(a)(i)).
This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here the United Arab Emirates). See Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether a UDRP complainant has registered its trademark in the country in which a respondent resides, only that it can establish rights in its mark in some jurisdiction).
Turning to the central question arising under Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <bloombergarabia.tv> domain name is confusingly similar to Complainant’s BLOOMBERG trademark. The domain name fully incorporates the BLOOMBERG mark, with the addition only of the geographic reference “Arabia” and the country-code top-level domain (“ccTLD”) “.tv.” These alterations of the mark, made in forming the domain name, do not save the domain name from the realm of confusing similarity under the standards of the Policy. See, for example, Skype Ltd. & Gannett Co. v. Chan, D2004-0117 (WIPO Apr. 8, 2004):
[I]t is well established that a domain name consisting of a well-known mark, combined with a geographically descriptive term or phrase, is confusingly similar to the mark.
See also Univision Communications Inc. v. Edmundo Norte c/o Harvardhome-boy.com, FA 1000079 (Nat. Arb. Forum Aug. 16, 2007) (finding that the addition of the ccTLD “.tv” to the mark of another in creating a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Re-spondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that a complainant must make a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that re-spondent to show that it does have such rights or interests); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006):
Complainant must first make a prima facie showing that Respond-ent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to deter-mine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that Complainant asserts, and Respondent does not deny,
that Respondent has not been commonly known by the <bloombergarabia.tv> domain name, and that Complainant has not licensed or otherwise permitted Respondent to use its BLOOMBERG mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the disputed domain name only as “Muhammad Bussti,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the meaning of Policy ¶ 4(c)(ii). See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding, under Policy ¶ 4(c)(ii), no rights or legitimate interests in a contested domain name where, among other things, a respondent was not a licensee of a UDRP complainant and that respondent was not commonly known by the domain name in question).
We next observe that Complainant contends, without objection from Respondent, that Respondent has no rights to or legitimate interests in the contested domain name in that Respondent uses the domain name to resolve to a website featuring third party advertising links unrelated to the business of Complainant . In the cir-cumstances here presented, we may comfortably presume that Respondent re-ceives income from the operation of the resolving website. This employment of the disputed domain name is 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 Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (finding that a respondent’s use of a disputed domain name to redirect Internet users to commercial websites unrelated to the business of a UDRP complainant, presumably with the purpose of receiving a commission or pay-per-click referral fee, did not evidence rights to or legitimate interests in the domain name under Policy ¶ 4(c)(i) or ¶4 (c)(iii)).
The Panel therefore finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent’s employment of the con-tested <bloombergarabia.tv> domain name in the manner alleged in the Com-plaint, and for its presumed profit, demonstrates that Respondent registered and uses the domain name in bad faith as described in Policy ¶ 4(b)(iv). See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006):
Respondent is using the disputed domain name to operate a web-site which features links to competing and non-competing commer-cial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).
We are also convinced by the evidence that Respondent knew of Complainant and its rights in the BLOOMBERG trademark when Respondent registered the <bloombergarabia.tv> domain name. This is independent of bad faith in the registration of the domain name. See Univision Comm'cns Inc. v. Norte, FA 1000079 (Nat. Arb. Forum Aug. 16, 2007) (rejecting a respondent's contention that it did not register a disputed domain name in bad faith where a panel found that that respondent had knowledge of a UDRP complainant's rights in the mark UNIVISION while registering the domain name).
Accordingly, the Panel finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <bloombergarabia.tv> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: October 23, 2013
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