Bloomberg Finance L.P. v. CaiChonghui / Wanglan
Claim Number: FA1409001579508
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by William M. Ried of Bloomberg L.P., New York, USA. Respondent is CaiChonghui / Wanglan (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bloomberga.org>, registered with ZhuHai NaiSiNiKe Information Technology Co Ltd (R1931-LROR).
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 September 12, 2014; the National Arbitration Forum received payment on September 12, 2014. The Complaint was received in Chinese and English.
On September 17, 2014, ZhuHai NaiSiNiKe Information Technology Co Ltd (R1931-LROR) confirmed by e-mail to the National Arbitration Forum that the <bloomberga.org> domain name is registered with ZhuHai NaiSiNiKe Information Technology Co Ltd (R1931-LROR) and that Respondent is the current registrant of the name. ZhuHai NaiSiNiKe Information Technology Co Ltd (R1931-LROR) has verified that Respondent is bound by the ZhuHai NaiSiNiKe Information Technology Co Ltd (R1931-LROR) 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 September 22, 2014, the Forum served the Chinese language Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 14, 2014 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@bloomberga.org. Also on September 22, 2014, 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 October 21, 2014, 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 uses the BLOOMBERG mark to provide an array of financial analysis, information, and news services. The mark has been registered with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 2,736,744, registered July 15, 2003). The <bloomberga.org> domain name is confusingly similar to the mark because adding an additional letter “a” is a blatant attempt to garner the goodwill and recognition of Complainant’s mark.
b. Respondent has no rights or legitimate interests in this <bloomberga.org> domain name. Nothing in the WHOIS record suggests Respondent is known as the <bloomberga.org> domain name, and Respondent lacks authority from Complainant to otherwise use BLOOMBERG. As to the domain name’s actual use, there does not appear to be a functioning website online connected with the <bloomberga.org> domain name. See Compl., at Attached Ex. G.
c. Respondent has registered and used the domain name in bad faith. Complainant believes that the widespread use and fame surrounding the BLOOMBERG mark are as such that Respondent had to have registered and used the domain name with actual knowledge of Complainant’s rights in BLOOMBERG.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Bloomberg Finance L.P. of 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 CaiChonghui / Wanglan of China. Respondent’s registrar’s address is Guangdong, China. The Panel notes that the <bloomberga.org> domain name was registered on or about November 16, 2013.
Panel Note: Language of the Proceedings
The Panel notes that the Registration Agreement is written in Chinese, thereby making the language of the proceedings in Chinese.
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
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 uses the BLOOMBERG mark to provide an array of financial analysis, information, and news services. The mark has been registered with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 2,736,744, registered July 15, 2003). The Panel finds that the USPTO registration satisfies the Policy ¶ 4(a)(i) required showing of rights in a mark, regardless of where Respondent resides. See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”).
Complainant claims that the <bloomberga.org> domain name is confusingly similar to the mark because adding an additional letter “a” is a blatant attempt to garner the goodwill and recognition of Complainant’s mark. The Panel finds that both the additional letter “a” and the generic top-level domain (“gTLD”) “.com” are insufficient alterations to distinguish the BLOOMBERG mark, and as such the domain name is confusingly similar to the mark under Policy ¶ 4(a)(i). See, Am. Online, Inc. v. Tullo, FA 150811 (Nat. Arb. Forum Apr. 15, 2003) (finding that the <3daol.com> domain name is confusingly similar to the complainant’s AOL mark because “…the addition of the prefix ‘3d’ does nothing to ‘distinguish’ Respondent’s domain name from Complainant’s registered trademarks.”).
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 nothing in the WHOIS record suggests Respondent is known as or by the <bloomberga.org> domain name, and Respondent lacks authority from Complainant to otherwise use the BLOOMBERG mark. The Panel notes that “CaiChonghui” is listed as the registrant of record for this disputed domain name. The Panel finds that nothing in this record suggests that Respondent has ever been commonly known as or by the <bloomberga.org> domain name under Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Complainant further argues that as to the domain name’s actual use, there does not appear to be a functioning website online connected with the <bloomberga.org> domain name. The Panel notes that the domain name merely contains an error message. The Panel finds that Respondent’s failure to put the domain name to active use supports the conclusion that neither a Policy ¶ 4(c)(i) bona fide offering, nor Policy ¶ 4(c)(iii) legitimate noncommercial or fair use have been made of the <bloomberga.org> domain name. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Nat. Arb. Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the failure to make an active use of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”).
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.
While Complainant has not included any arguments relating to the articulated provisions of Policy ¶ 4(a), the Panel notes that Policy ¶ 4(a) is not meant to be exclusive. See CBS Broad., Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (“[T]he Policy expressly recognizes that other circumstances can be evidence that a domain name was registered and is being used in bad faith”).
Complainant contends that the widespread use and fame surrounding the BLOOMBERG mark are such that Respondent registered and used the domain name with actual knowledge of Complainant’s rights in BLOOMBERG. The Panel finds that Respondent’s reference of “Bloomberg LP” on the domain name’s error page indicates that Respondent was aware of Complainant when registering the domain name, and as such registered the name in Policy ¶ 4(a)(iii) bad faith. See 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”).
The Panel additionally finds that Respondent’s failure to make an active use of the <bloomberga.org> domain name is evidence that Respondent’s conduct amounts to Policy ¶ 4(a)(iii) bad faith here. See, e.g., Am. Broad. Cos., Inc. v. Sech, FA 893427 (Nat. Arb. Forum Feb. 28, 2007) (concluding that the respondent’s failure to make active use of its domain name in the three months after its registration indicated that the respondent registered the disputed domain name in bad faith).
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 <bloomberga.org> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: November 4, 2014
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page