Bloomberg Finance L.P. v. Arney Rosenblat / ibloomberg
Claim Number: FA1509001637252
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by William M. Ried of Bloomberg L.P., New York, USA. Respondent is Arney Rosenblat / ibloomberg (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ibloomberg.net>, registered with Melbourne IT Ltd.
The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 10, 2015; the Forum received payment on September 10, 2015.
On September 14, 2015, Melbourne IT Ltd confirmed by e-mail to the Forum that the <ibloomberg.net> domain name is registered with Melbourne IT Ltd and that Respondent is the current registrant of the name. Melbourne IT Ltd has verified that Respondent is bound by the Melbourne IT 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 September 15, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 5, 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@ibloomberg.net. Also on September 15, 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 October 9, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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 the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant has registered the BLOOMBERG mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,736,744, registered July 15, 2003). The mark is used in connection with the provision of global financial news and data and related goods and services. The <ibloomberg.net> domain name is confusingly similar to the BLOOMBERG trademark because the domain name contains the entire mark and merely adds the letter “i” along with the generic top-level domain (“gTLD”) “.net.”
Respondent has no rights or legitimate interests. Respondent is not commonly known as the domain name, nor is Respondent a licensee of Complainant. Further, the domain name resolves to a webpage that displays unrelated hyperlinks.
Respondent has engaged in bad faith registration and use. Due to the fame and recognition of the BLOOMBERG mark, Respondent registered and used the disputed domain name in bad faith pursuant to its actual knowledge.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(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.
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 Complainant prove the following three elements to obtain an order cancelling or transferring a domain name:
(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 registered the BLOOMBERG mark with the USPTO (e.g., Reg. No. 2,736,744, registered July 15, 2003). Complainant’s mark is used in connection with Complainant’s global financial news and data and related goods and services. Complainant’s registration with the USPTO (or any other governmental authority) is sufficient to establish its rights in a trademark. 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.”). It is not necessary for Complainant to register where Respondent resides or does business. It is merely necessary for Complainant to prove it has SOME rights at stage of the proceeding. Therefore, this Panel finds Complainant has adequately proved its rights in the mark.
Complainant claims the <ibloomberg.net> domain name is confusingly similar to the BLOOMBERG trademark. The domain name contains the entire mark and merely adds the letter “i” along with the generic top-level domain (“gTLD”) “.net.” As a general rule, the gTLD “.net” cannot distinguish the domain name from a trademark under a Policy ¶4(a)(i) analysis because domain name syntax requires a TLD. See Katadyn N. Am. v. Black Mountain Stores, FA 520677 (Nat. Arb. Forum Sept. 7, 2005) (“[T]he addition of the generic top-level domain (gTLD) “.net” is irrelevant for purposes of determining whether a domain name is identical to a mark.”). The domain name and the mark are confusingly similar when the domain name contains the entire mark and adds a single additional letter, as Respondent has done here. See Amazon.com, Inc. v. Ikhizamah, D2002-1168 (WIPO Mar. 17, 2003) (holding that the <zamazon.com> domain name was confusingly similar to the complainant’s AMAZON.COM mark). This domain name contains Complainant’s entire mark. The <ibloomberg.net> domain name is confusingly similar to the BLOOMBERG trademark under Policy ¶4(a)(i).
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant must first make a prima facie case Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii). Then the burden shifts to Respondent to show it has 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 claims Respondent is not commonly known as the <ibloomberg.net> domain name, nor does Respondent have any licensing rights allowing him to use the BLOOMBERG mark in domain names. The WHOIS information lists “Arney Rosenblat” as the registrant of record for the disputed domain name. There is no evidence in the record to indicate Respondent is commonly known by the disputed domain name. There is no obvious connection between Respondent’s name and the domain name. Respondent is neither commonly known as the disputed domain name nor have licensing rights. In the face of such evidence and in the absence of any evidence to the contrary, Respondent cannot have rights or legitimate interests 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 claims Respondent’s use of the <ibloomberg.net> domain name is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. The domain name resolves to a webpage that displays various hyperlinks to articles unrelated to Complainant or its BLOOMBERG mark. The titles to some of those articles include “Man accused of crashing car with cop hanging onto door,” “Why do dolphins seek encounters with humans?” and “Dawn of the ‘digital pill.’” The use of a confusingly similar domain name to display unrelated hyperlinks does not amount to a bona fide offering or a legitimate noncommercial or fair use. See Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Nat. Arb. Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant). Respondent has no rights under Policy ¶¶4(c)(i) and (iii).
Based upon the response the Forum got from the domain name’s address of record, it appears Respondent used fictitious information to register the domain name. Having falsified the registration information, Respondent has not publicly associated itself with the domain name. This means Respondent could not acquire any rights simply by registering the domain name.
The Panel finds Policy ¶4(a)(ii) satisfied.
Complainant claims Respondent has engaged in bad faith registration and use. While Complainant does not make contentions that neatly fall within the articulated provisions of Policy ¶4(b), these provisions are meant to be merely illustrative of bad faith.. Respondent’s bad faith may be demonstrated under the totality of the circumstances. See Digi Int’l Inc. v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (determining that Policy ¶4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith); Twentieth Century Fox Film Corp. v. Risser, FA 93761 (Nat. Arb. Forum May 18, 2000) (“The requirement in the ICANN Policy that a complainant prove that domain names are being used in bad faith does not require that it prove in every instance that a respondent is taking positive action. Use in bad faith can be inferred from the totality of the circumstances even when the registrant has done nothing more than register the names.”).
Complainant’s trademark registrations for the BLOOMBERG mark existed well before the registration of the <ibloomberg.net> domain name. In light of the fame surrounding Complainant’s mark, it seems inconceivable Respondent didn’t have actual knowledge of Complainant's rights in the mark. Therefore, Respondent has registered the<ibloomberg.net> 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).
Respondent apparently registered the disputed domain name using a fictitious name and address (given the response the Forum received from the address of record). Given a registrant is required to give accurate information when registering a domain name, this violates Respondent’s obligations. This gives rise to the rebuttable presumption of bad faith registration and use in the commercial context. Respondent has done nothing to rebut that presumption. Therefore, the Panel can (and does) find bad faith on those grounds alone.
The Panel finds Policy ¶4(a)(iii) satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.
Accordingly, it is Ordered the <ibloomberg.net> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Wednesday, October 14, 2015
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page