Bloomberg Finance v. laikem goodman
Claim Number: FA1705001730984
Complainant is Bloomberg Finance (“Complainant”), represented by Amin Kassam of Bloomberg L.P., New York, USA. Respondent is laikem goodman (“Respondent”), Georgia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bloombergprocessing.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 10, 2017; the Forum received payment on May 10, 2017.
On May 10, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <bloombergprocessing.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 11, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 31, 2017 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@bloombergprocessing.com. Also on May 11, 2017, 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 June 5, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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, doing business under the BLOOMBERG mark, is one of the world’s largest providers of financial news and data and related goods and services.
Complainant holds a registration for the BLOOMBERG trademark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 3,430,969, registered on May 20, 2008.
Respondent registered the domain name <bloombergprocessing.com> on or about April 5, 2017.
The domain name is confusingly similar to Complainant’s BLOOMBERG mark.
Respondent has not been commonly known by the domain name.
Complainant has not granted Respondent a license or other permission to use the BLOOMBERG mark for any purpose.
Respondent is not using the domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use.
Rather, Respondent employs the domain name to trade upon Complainant’s global reputation.
The domain name currently resolves to a website that claims to represent a “National Processing Firm” that assists clients with legal payment processing.
Respondent does not have rights to or legitimate interests in the domain name.
Respondent knew of Complainant’s mark when registering the domain name.
Respondent registered and uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the same domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept all reasonable allegations and inferences set out in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
Complainant has rights in the BLOOMBERG trademark for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum August 4, 2015) (finding that a UDRP complainant’s USPTO registrations for a mark sufficiently demonstrated its rights in that mark under Policy ¶ 4(a)(i)).
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <bloombergprocessing.com> domain name is confusingly similar to Complainant’s BLOOMBERG mark. The domain name contains the mark in its entirety, adding only the generic term “processing,” which describes an aspect of Complainant’s business, plus the generic Top Level Domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See Traditional Medicinals, Inc. v. Flippa Chick FA 1006001328702 (Forum July 15, 2010):
Respondent’s disputed domain name contains Complainant’s … mark in its entirety after removing the space separating the terms of the mark, adds the descriptive terms “herbal tea” and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds that the addition of descriptive terms creates a confusing similarity between the disputed domain name and Complainant’s mark.
See also Trip Network Inc. v. Alviera, FA 914943 (Forum March 27, 2007) (concluding that the affixation of a gTLD to the mark of another in creating a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). This is because every domain name requires a gTLD.
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in a disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … 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, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to determine whether there is in that record any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name which are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the challenged <bloombergprocessing.com> domain name, and that Complainant has not authorized Respondent to use the BLOOMBERG mark in any way. Moreover, the pertinent WHOS information identifies the registrant of the domain name only as “Laikem Goodman,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the contested domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. v. Song Bin, FA1408001574905 (Forum September 17, 2014) (finding that a respondent was not commonly known by a disputed domain name as demonstrated by the relevant WHOIS information and the fact that a UDRP complainant had not licensed or otherwise authorized that respondent to use its mark.) See also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that a respondent was not commonly known by a disputed domain name, and thus failed to show that it had rights to or legitimate interests in that domain name as provided in Policy ¶ 4(c)(ii), where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name registration).
We next observe that Complainant asserts, without objection from Respondent, that Respondent uses the domain name in an effort to trade upon Complainant’s public reputation, in that the domain name resolves to a website that claims to represent a “National Processing Firm” assisting clients with legal payment processing. In the circumstances set out in the Complaint, we may comfortably presume that Respondent employs the domain name in the manner described in order to profit financially. This use of the domain name is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use under Policy ¶ 4(c)(i). See Bloomberg L.P. v. Bloomberg Realty (India) Private Limited, FA 1439263 (Forum May 30, 2012):
… Respondent was more likely than not motivated to adopt those [domain] names by a desire to trade off Complainant’s global reputation in its … mark. Use of a domain name which intentionally trades on the fame of another cannot constitute a ‘bona fide’ offering of goods or services for the purposes of the Policy, paragraph 4(c)(i), and cannot bring Respondent within the scope of paragraphs 4(c)(ii) or (iii). See Ciccone v. Parisi, D2000‑0847 (WIPO Oct. 12, 2000).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent uses the contested <bloombergprocessing.com> domain name, which is confusingly similar to Complainant’s BLOOMBERG mark, in order to profit from the confusion thus caused among Internet users as to the possibility of Complainant’s association with the domain name and its resolving website. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in registering and using the domain name. See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015):
The panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith [registration and use of the domain name] per Policy ¶ 4(b)(iv).
We are also convinced by the evidence that Respondent knew of Complainant and its rights in the BLOOMBERG mark when it registered the challenged <bloombergprocessing.com> domain name. This further demonstrates Respondent’s bad faith in registering the domain name. See, for example, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum August 16, 2007) (rejecting a respondent's contention that it did not register a disputed domain name in bad faith where a panel found that that respondent knew of a UDRP complainant's rights in its mark when registering a confusingly similar domain name).
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <bloombergprocessing.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: June 7, 2017
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