Bloomberg Finance L.P. v. network admin
Claim Number: FA1506001622138
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by William M. Ried of Bloomberg L.P., New York, United States. Respondent is network admin (“Respondent”), Delaware, United States.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <bloombergb.info>,<bloombergsa.info>, <bloombergss.info>, <1bloomberg.info>,<bloombergazi.info>, <bomblerg.info>, and <12bloombergs.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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 2, 2015; the Forum received payment on June 2, 2015.
On June 3, 2015, CSL Computer Service Langenbach GmbH d/b/a joker.com confirmed by e-mail to the Forum that the <bloombergb.info>, <bloombergsa.info>, <bloombergss.info>, <1bloomberg.info>, <bloombergazi.info>, <bomblerg.info>, <12bloombergs.info> domain names are registered with CSL Computer Service Langenbach GmbH d/b/a joker.com and that Respondent is the current registrant of the names. 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 June 10, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 30, 2015 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@bloombergb.info, postmaster@bloombergsa.info, postmaster@bloombergss.info, postmaster@1bloomberg.info, postmaster@bloombergazi.info, postmaster@bomblerg.info, postmaster@12bloombergs.info. Also on June 10, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On July 8, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant uses the BLOOMBERG mark to distinguish itself as one of the largest providers of global financial news and data and as a leading source of financial information and analysis. Complainant has registered the BLOOMBERG mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 254,579, registered September 29, 1993), which demonstrates its rights in the mark. Complainant argues that the <bloombergb.info>,<bloombergsa.info>, <bloombergss.info>, <1bloomberg.info>, <bloombergazi.info>, <bomblerg.info>, and <12bloombergs.info> domain names are confusingly similar to the BLOOMBERG mark as they simply insert, delete, or switch letters and numbers in a blatant attempt to garner the goodwill and recognition of the famous BLOOMBERG mark.
Respondent has no rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names or any variant of the BLOOMBERG mark. Additionally, Respondent is not making a bona fide offering of goods or services through the disputed domain names, nor a legitimate noncommercial or fair use.
Respondent has registered and is using the disputed domain names in bad faith. Complainant has a strong reputation and a high-profile presence in the financial and media sectors. Consequently, it is clear that Respondent must have had at least constructive knowledge of Complainant’s rights in the BLOOMBERG mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. The bloombergb.info> disputed domain name was registered on October 30, 2014. The <bloombergsa.info> disputed domain name was registered on November 5, 2014. The <bloombergss.info> disputed domain name was registered on November 22, 2014. The <1bloomberg.info> disputed domain name was registered on November 24, 2014. The <bloombergazi.info> disputed domain name was registered on November 25, 2014. The <bomblerg.info> disputed domain name was registered on November 26, 2014. The <12bloombergs.info> disputed domain name was registered on November 27, 2014
As the Respondent has failed to file a Response in the matter, the Panel shall make its determination based on the uncontroverted and reasonable assertions of the Complainant. As such, the Panel finds that all of the disputed domain names herein are confusingly similar with Complainant’s famous trademark, that the Respondent has no rights or legitimate interests in or to the disputed domain names, and that the Respondent has engaged in bad faith use and registration of the disputed domain names.
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 identify its financial news and data information. Complainant has registered the BLOOMBERG mark with the USPTO (e.g., Reg. No. 254,579, registered September 29, 1993), and argues that such trademark registrations demonstrate its rights in the mark. Trademark registrations with USPTO are sufficient to demonstrate the Complainant’s rights in the mark for the purposes of Policy ¶ 4(a)(i). See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations [with the USPTO] establish Complainant's rights in the BLIZZARD mark.”).
Complainant argues that the disputed domain names are confusingly similar to the BLOOMBERG mark as the domain names simply insert, delete, or switch letters and numbers in a blatant attempt to garner the goodwill and recognition of the famous BLOOMBERG mark. The addition, deletion, and switching of letters and numbers in domain names do not remove Respondent’s domain names from the realm of confusing similarity in relation to Complainant’s BLOOMBERG mark pursuant to Policy ¶ 4(a)(i). See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); see also Am. Online, Inc. v. Oxford Univ., FA 104132 (Nat. Arb. Forum Mar. 19, 2002) (finding several domain names that added the numeral “7” or the term “seven” to the complainant’s AOL mark were confusingly similar to the mark under Policy ¶ 4(a)(i)).
As such, the Panel finds that the disputed domain names are confusingly similar to the Complainant’s famous trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the <bloombergb.info>, <bloombergsa.info>, <bloombergss.info>, <1bloomberg.info>, <bloombergazi.info>, <bomblerg.info>, and <12bloombergs.info> domain names. Complainant argues that Respondent is not commonly known by the disputed domain names or any variant of the BLOOMBERG mark. Additionally, Complainant argues that Respondent is not affiliated with BLOOMBERG and has not received any license or consent, express or implied, to use any domain name registrations which are confusingly similar to Complainant’s mark. The WHOIS information merely lists “network admin” as registrant. Because Respondent has failed to provide any evidence for the Panel’s consideration, the Panel finds no basis in the available record to find Respondent commonly known by the disputed domain name per Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name).
Complainant alleges that Respondent is not making a bona fide offering of goods or services through the disputed domain names, nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). Complainant argues that because the disputed domain names do not point to any functioning website, Respondent cannot claim a right or legitimate interest in the domain names. The Complainant has submitted Attached Exhibit G for the Panel’s consideration, which allegedly demonstrates Respondent’s failure to make an active use of each disputed domain name. The Respondent lacks rights and legitimate interests in or to a confusingly similar domain name when it has not made any active use of it. See George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (finding that the respondent had no rights or legitimate interests in a domain name under either Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii) where it failed to make any active use of the domain name).
Accordingly, the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii).
Complainant asserts Respondent has engaged in bad faith registration and use of the disputed domain names. Complainant has a strong reputation and a high-profile presence in the financial and media sectors, and is the subject of substantial consumer recognition and goodwill. As such, Complainant argues that Respondent’s use of Complainant’s mark leads to the conclusion that Respondent had knowledge of Complainant’s mark before registering the disputed domain names, which is evidence of bad faith pursuant to Policy ¶ 4(a)(iii).
The Panel finds any arguments of bad faith based on constructive knowledge are irrelevant, however, because UDRP case precedent declines to find bad faith as a result of constructive knowledge. 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.”). Complainant, however, also alleges that Respondent had actual knowledge of Complainant’s rights in the mark prior to registering the disputed domain name. Actual knowledge is adequate evidence of bad faith registration under Policy ¶ 4(a)(iii). See Victoria’s Secret Stores Brand Mgmt., Inc. v. Michael Bach, FA 1426668 (Nat. Arb. Forum Mar. 2, 2012) (“Although Complainant has not submitted evidence indicating actual knowledge by Respondent of its rights in the trademark, the Panel finds that, due to the fame of Complainant’s [VICTORIA’S SECRET] mark, Respondent had actual notice at the time of the domain name registration and therefore registered the domain name in bad faith under Policy ¶ 4(a)(iii).”).
The Complainant argues that Respondent had failed to make an active use of the disputed domain names. While Complainant makes this argument primarily as demonstrating Respondent’s lack of rights and legitimate interests, the Panel considers this argument as additional evidence of bad faith. The Complainant’s Attached Exhibit G allegedly shows this failure to make an active use. The Panel, therefore, finds that Respondent’s failure to make an active use of the disputed domain names is evidence of bad faith under Policy ¶ 4(a)(iii). See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely holding an infringing domain name without active use can constitute use in bad faith).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <bloombergb.info>, <bloombergsa.info>, <bloombergss.info>, <1bloomberg.info>, <bloombergazi.info>,<bomblerg.info>, <12bloombergs.info> domain names transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: July 11, 2015
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