Bloomberg Finance L.P. v. Weijun Kuang
Claim Number: FA1407001570181
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by William M. Ried of Bloomberg L.P., New York, USA. Respondent is Weijun Kuang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <bloombergb.com>, <bloombergf.com>, and <bloombergy.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 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 July 17, 2014; the National Arbitration Forum received payment on July 17, 2014.
On July 17, 2014, GODADDY.COM, LLC confirmed by e-mail message to the National Arbitration Forum that the <bloombergb.com>, <bloombergf.com>, and <bloombergy.com> domain names is registered with GODADDY.COM, LLC and that Respondent is the current registrant of the names. 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 July 18, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 7, 2014 by which Respondent could file a Response to the Complaint, via e-mail message addres-sed to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@bloombergb.com, and to postmaster@bloombergf.com and postmaster@bloombergy.com. Also on July 18, 2014, Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respond-ent via post and fax, to all entities and persons listed on Respondent’s registra-tion 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 August 14, 2014, 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 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant is one of the largest providers of global financial news and data, and a leading source of financial information and analysis.
Complainant holds registrations, on file with the United States Patent and Trade-mark Office (“USPTO”) for the BLOOMBERG trademark (including Registry No. 2,736,744, registered July 15, 2003).
Respondent registered the disputed domain names on the following dates: <bloombergb.com> on December 6, 2013; <bloombergf.com> on November 17, 2013, and <bloombergy.com> on December 6, 2013.
Each of these domain names is confusingly similar to Complainant’s BLOOM-BERG mark.
Respondent has not been commonly known by the BLOOMBERG mark.
Complainant has not licensed or otherwise permitted Respondent to use its BLOOMBERG mark.
Complainant registered the disputed domain names to trade off of Complainant’s business reputation.
Each of the domain names resolves to pay-per-click websites displaying links such as “Bloomberg,” “Invest Stock Market, “Online Subscriptions,” “Bloomberg Terminal” and “Stock Quotes.”
Respondent has no rights to or legitimate interests in any of the domain names.
Respondent was aware of Complainant’s marks before registering the disputed domain names.
Respondent has demanded payment in exchange for the transfer of the domain names to complainant.
Respondent registered and is using the <bloombergb.com>, <bloombergf.com>, and <bloombergy.com> domain names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain names registered by Respondent are confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of any of the domain names; and
(3) the same domain names were registered and are being used by Respond-ent 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 authority, the USPTO. See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (concluding that a UDRP complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO).
This is true without regard to whether Complainant has acquired rights in its mark by virtue of its registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here China). See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that a mark be registered in the country in which a respondent operates, it being sufficient that a UDRP complainant can demon-strate rights in its mark in some jurisdiction).
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <bloombergb.com>, <bloombergf.com> and <bloombergy.com> domain names are confusingly similar to Complainant’s BLOOMBERG mark. Each of the domain names incorporates Complainant’s entire BLOOMBERG mark, merely adding the letters “b,” “f,” or “y and the generic top-level domain (“gTLD”) “.com”.” These alterations of the mark, made in form-ing the domain names, do not save them from the realm of confusing similarity under the standards of the Policy. See Valpak Direct Mktg. Sys., Inc. v. Manila Indus., Inc., D2006-0714 (WIPO Aug. 17, 2006) (finding the <vallpak.com> do-main name to be confusingly similar to the VALPAK mark under Policy ¶ 4(a)(i)).
See also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002), the panel there finding that attaching a gTLD to the mark of another in creating a domain name is “unable to create a distinction capable of overcoming a finding of confusing similarity.”
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 <bloombergb.com>, <bloombergf.com> or <bloombergy.com> domain names, and that Complainant has not licensed or otherwise permitted Respondent to use Complainant’s BLOOMBERG mark. Moreover, the WHOIS information for the domain names identifies the registrant in each instance only as “Weijun Kuang,” which does not resemble any of the domain names. See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (finding that a UDRP respondent had no rights to or legitimate interests in a disputed domain name where there was no evidence in the record indicating that that respondent was commonly known by the domain name).
We next observe that Complainant asserts, without objection from Respondent, that Respondent registered the <bloombergb.com>, <bloombergf.com> and <bloombergy.com> domain names to trade off of Complainant’s business repu-tation, and that each of the domain names resolves to a pay-per-click website that features links such as “Bloomberg,” “Invest Stock Market, “Online Sub-scriptions,” “Bloomberg Terminal” and “Stock Quotes.” This employment of the domain names is neither a bona fide offering of goods or services under Policy Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [complainant’s] mark,” that respondent was not using the domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use).
The Panel therefore finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent knew of complainant and its rights in the BLOOMBERG trademark when it registered the <bloombergb.com>, <bloombergf.com> and <bloombergy.com> domain names. This stands as proof of Respondent’s bad faith in the registration and use of the domain names. See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007) (finding that a UDRP respondent reg-istered a domain name in bad faith under Policy ¶ 4(a)(iii) where that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").
Thus 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 <bloombergb.com>, <bloombergf.com>, and <bloombergy.com> domain names be TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: August 19, 2014
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