Bloomberg Finance L.P. v network admin
Claim Number: FA1410001586551
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by William M. Ried of Bloomberg L.P., New York, USA. Respondent is network admin (“Respondent”), Delaware, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bloombergbusiness.info>, registered with CSL Computer Service Langenbach GmbH d/b/a joker.com.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 23, 2014; the National Arbitration Forum received payment on October 23, 2014.
On October 24, 2014, CSL Computer Service Langenbach GmbH d/b/a joker.com confirmed by e-mail to the National Arbitration Forum that the <bloombergbusiness.info> domain name is registered with CSL Computer Service Langenbach GmbH d/b/a joker.com and that Respondent is the current registrant of the name. CSL Computer Service Langenbach GmbH d/b/a joker.com has verified that Respondent is bound by the CSL Computer Service Langenbach GmbH d/b/a joker.com 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 October 24, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 13, 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@bloombergbusiness.info. Also on October 24, 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 November 20, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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’s Contentions
1. Complainant argues that the BLOOMBERG mark has been used for quite some time to identify its array of financial and information-gathering services. The BLOOMBERG mark has been registered with the likes of the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 2,736,744, registered July 15, 2003). This <bloombergbusiness.info> domain name adds the generic term “business” and the gTLD “.info” to the mark in forming the domain name.
2. Respondent has no rights or legitimate interests in this <bloombergbusiness.info> domain name. First, Respondent is not commonly known by the <bloombergbusiness.info> domain name in any way. Further, the domain name has no functioning website.
3. Respondent has registered and is using the <bloombergbusiness.info> domain name in bad faith because Respondent had to have known of Complainant’s interest in BLOOMBERG when registering the domain name.
B. Respondent’s Contentions
1. Respondent did not submit a response.
1. Respondent’s <bloombergbusiness.info> domain name is confusingly similar to Complainant’s BLOOMBERG mark.
2. Respondent does not have any rights or legitimate interests in the <bloombergbusiness.info > domain name.
3. Respondent registered or used the < bloombergbusiness.info > domain name 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 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 argues that the BLOOMBERG mark has been used for quite some time to identify its array of financial and information-gathering services. The BLOOMBERG mark has been registered with the likes of the USPTO (e.g., Reg. No. 2,736,744, registered July 15, 2003). This Panel agrees the mark’s registration is sufficient evidence of Complainant’s rights under Policy ¶ 4(a)(i). 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 this <bloombergbusiness.info> domain name adds the generic term “business” and the gTLD “.info” to the mark in forming the domain name. The Panel finds that the addition of “.info” is irrelevant, while the additional term “business” adds confusing similarity by relying on the BLOOMBERG mark as a predicate term. See Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)). Thus, the Panel finds Policy ¶ 4(a)(i) confusing similarity here.
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); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent 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 argues that Respondent is not commonly known by the <bloombergbusiness.info> domain name in any way. The Panel notes how “network admin” is identified as the registrant of record in the WHOIS record. This Panel agrees that there is simply no basis in the record for finding Respondent to be commonly known by the <bloombergbusiness.info> 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 argues that the domain name has no functioning website. The Panel takes note of how the domain name presently resolves to an “error” page. See Compl., at Attached Ex. G. In Pirelli & C. S.p.A. v. Tabriz, FA 921798 (Apr. 12, 2007), the panel found no bona fide offering when the domain name resolved to an inactive website, and there was no evidence to suggest that a legitimate noncommercial use or fair use was in store. This Panel similarly concludes that Respondent lacks rights pursuant to Policy ¶¶ 4(c)(i), (iii).
Complainant argues that Respondent has registered and is using the <bloombergbusiness.info> domain name in bad faith because Respondent had to have known of Complainant’s interest in BLOOMBERG when registering the domain name. While panels have concluded that constructive notice is not sufficient to support a bad faith finding, the Panel finds that, due to the fame of Complainant's mark, Respondent had actual knowledge of the mark and Complainant's rights. Thus, the Panel holds that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."); 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”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bloombergbusiness.info> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: December 3, 2014
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