Bloomberg Finance L.P. v. Guo Mian
Claim Number: FA1505001619037
Complainant is Bloomberg Finance L.P. ("Complainant"), represented by William M. Ried of Bloomberg L.P., New York, USA. Respondent is Guo Mian ("Respondent"), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bloombergdata.net>, registered with HICHINA ZHICHENG TECHNOLOGY LTD.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 12, 2015; the Forum received payment on May 12, 2015. The Complaint was submitted in both English and Chinese.
On May 14, 2015, HICHINA ZHICHENG TECHNOLOGY LTD. confirmed by email to the Forum that the <bloombergdata.net> domain name is registered with HICHINA ZHICHENG TECHNOLOGY LTD. and that Respondent is the current registrant of the name. HICHINA ZHICHENG TECHNOLOGY LTD. has verified that Respondent is bound by the HICHINA ZHICHENG TECHNOLOGY LTD. 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 19, 2015, the Forum served the Chinese language Complaint and all Annexes, including a Chinese Written Notice of the Complaint, setting a deadline of June 8, 2015 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@bloombergdata.net. Also on May 19, 2015, the Chinese Written Notice of the Complaint, notifying Respondent of the email 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 Forum transmitted to the parties a Notification of Respondent Default.
On June 11, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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 is one of the largest providers of global financial news and data and related goods and services. Complainant adopted the BLOOMBERG trade name and mark in 1987. BLOOMBERG and related marks are registered in over one hundred countries.
Complainant contends that the disputed domain name <bloombergdata.net>, registered by Respondent in December 2014, is confusingly similar to Complainant's BLOOMBERG mark; that Respondent has no rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith. In support thereof, Complainant states that Respondent is not commonly known by the Bloomberg name, and that Complainant has not licensed or otherwise permitted Respondent to use Complainant's mark. Complainant accuses Respondent of registering and using the disputed domain name in an attempt to profit from the goodwill and recognition of Complainant's mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used 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.").
The Panel notes that the Registration Agreement is written in Chinese, thereby making that the language of the proceedings. 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, concludes that the remainder of the proceedings may be conducted in English. See, e.g., Griffin Technology, Inc. v. huahuagongzi, FA 1612122 (Forum May 8, 2015); Gianvito Rossi SRL Unipersonale v. Rossi Gianvito / Gianvito Rossi, FA 1601449 (Nat. Arb. Forum Mar. 4, 2015); The One Group LLC v. She Deli, FA 1557538 (Nat. Arb. Forum June 11, 2014).
The disputed domain name corresponds to Complainant's registered BLOOMBERG mark, with the generic term "data" and the top-level domain suffix ".net" appended thereto. These additions do not diminish the similarity between the domain name and Complainant's mark. See, e.g., Bloomberg Finance L.P. v. Natasha Harenkova / nocompany, FA 1602544 (Nat. Arb. Forum Mar. 12, 2015) (finding <bloombergonline.net> confusingly similar to BLOOMBERG); Assurant, Inc. v. Nicholas Suchyta, FA 1355546 (Nat. Arb. Forum Dec. 7, 2010) (finding <assurantdata.net> confusingly similar to ASSURANT). The Panel finds that the disputed domain name is confusingly similar to Complainant's mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's mark without authorization, and Respondent does not appear to have made any active use of the domain name. Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(i) of the Policy, bad faith may be shown by evidence that the domain name was acquired "primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent's] documented out-of-pocket costs directly related to the domain name." Under paragraph 4(b)(iii), bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
These instances set forth in paragraph 4(b) are illustrative rather than exhaustive, and bad faith may be found based upon other circumstances in appropriate cases. See Hotel Plaza Limited, Parkroyal Hospitality Management Pte Ltd. (PHM) v. DomainWorks Inc./PARKROYAL.COM c/o Whois IDentity Shield/Vertical Axis, Inc., D2008-1760 (WIPO Mar. 18, 2009). Furthermore, a domain name may be so closely connected with a well-known trademark that its very use suggests opportunistic bad faith. See, e.g., Chevron Intellectual Property LLC v. Phillip Thomas / Chevron Pacific, FA 1615524 (Forum May 29, 2015) (finding opportunistic bad faith in registration of <chevronpacificep.com>); Lockheed Martin Corp. v. Joel Moman, FA 1565549 (Nat. Arb. Forum July 23, 2014) (finding opportunistic bad faith in registration of <lockheedaspen.com>); Chevron Intellectual Property LLC v. Tim Bruce, FA1544867 (Nat. Arb. Forum Mar. 26, 2014) (finding opportunistic bad faith in registration of <texaco-oil-us.com>).
Respondent does not appear to have made any active use of the disputed domain name. In the absence of any explanation from Respondent, the Panel considers it reasonable to infer that Respondent registered the domain name intending to use it in a manner calculated to create and exploit confusion with Complainant's mark, most likely either by selling the domain name or by using it to attract Internet users seeking Complainant, and that Respondent is maintaining the domain name for that purpose. Cf., e.g., Chevron Intellectual Property LLC v. Phillip Thomas / Chevron Pacific, supra (finding bad faith where domain name was used to redirect traffic to trademark owner's website); Capital One Financial Corp. v. Ralph Ratchford, FA 1602630 (Nat. Arb. Forum Feb. 26, 2015) (finding bad faith where domain name was used for a website containing only a "coming soon" message); Capital One Financial Corp. v. C W, FA 1542251 (Nat. Arb. Forum Mar. 17, 2014) (finding bad faith where domain name resolved to a blank web page); Lockheed Martin Corp. v. Mr Healrd Diviolrg, FA 1562892 (Nat. Arb. Forum July 1, 2014) (finding bad faith where domain name resolved to a website containing only a bare link to an error page). The Panel therefore finds that the disputed domain name was registered and has been used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bloombergdata.net> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: June 12, 2015
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