Bloomberg Finance L.P. v. Cesar R. Shepherd
Claim Number: FA1708001742833
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by Amin Kassam of Bloomberg L.P., New York, USA. Respondent is Cesar R. Shepherd (“Respondent”), Rhode Island, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bloomberg.pw>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
The Honorable Charles K. McCotter, Jr. ((Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 2, 2017; the Forum received payment on August 2, 2017.
On August 3, 2017, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <bloomberg.pw> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.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 August 3, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 23, 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@bloomberg.pw. Also on August 3, 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 August 24, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. ((Ret.) 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 a financial software, data, and media company that uses its BLOOMBERG mark to promote its business. Complainant registered the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,736,744, registered July 15, 2003). Respondent’s <bloomberg.pw> domain name is identical to Complainant’s mark because it merely appends the top-level domain (TLD) “.pw” to the fully incorporated mark.
Respondent has no rights or legitimate interests in the disputed domain name. Complainant has not licensed or otherwise authorized Respondent to use its BLOOMBERG mark, and Respondent is not commonly known by the disputed domain name. Respondent fails to use the <bloomberg.pw> domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). Instead, Respondent uses the domain name as the suffix for an email address for the purpose of fraudulently collecting Internet user’s information via email.
Finally, Respondent has registered and is using the disputed domain name in bad faith. Respondent had actual knowledge of Complainant’s rights in the BLOOMBERG mark at the time of registration due to the fame of Complainant’s mark. Respondent also engaged in bad faith when it used the domain name in connection with a fraud scheme.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Bloomberg Finance L.P., is a financial software, data, and media company that uses its BLOOMBERG mark to promote its business. Complainant registered the mark with the USPTO (e.g. Reg. No. 2,736,744, registered July 15, 2003). Respondent’s <bloomberg.pw> domain name is identical to Complainant’s mark.
Respondent, Cesar R. Shepherd, registered the <bloomberg.pw> domain name on May 20, 2017.
Respondent has no rights or legitimate interests in the <bloomberg.pw> domain name. Respondent uses the domain name as the suffix for an email address for the purpose of fraudulently collecting Internet user’s information via email. Currently, the domain name is being used to send fraudulent emails stating that “Bloomberg Philantropies has selected [the recipient] for a Grant Donation of $990,000 USD.”
Finally, Respondent has registered and is using the <bloomberg.pw> 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(f), 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 (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 has rights in its BLOOMBERG mark through registration with the USPTO. (e.g., Reg. No. 2,736,744, registered July 15, 2003). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (“There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . .”).
Respondent’s <bloomberg.pw> domain name is identical to Complainant’s mark because it merely appends the top-level domain (TLD) “.pw” to the fully incorporated mark.
Respondent has no rights or legitimate interests in the <bloomberg.pw> domain name. Complainant has not licensed or otherwise authorized Respondent to use its BLOOMBERG mark. The WHOIS information for the domain name lists “CEASAR R. SHEPHERD” as the registrant. Therefore, Respondent is not commonly known by the <bloomberg.pw>domain name. See Navistar International Corporation v. N Rahmany, FA 1620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration); see also Chevron Intellectual Property LLC v. Fred Wallace, FA 1626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name).
Respondent registered the <bloomberg.pw> domain name to pass himself off as an employee of Complainant in furtherance of an email phishing scheme. A respondent’s use of a domain name to phish for Internet users’ personal information is not a bona fide offering of goods or services or legitimate noncommercial or fair use pursuant to Policy ¶ 4(a)(ii), 4(c)(i) and (iii). See Morgan Stanley v. Zhange Sheng Xu / Zhang Sheng Xu, FA 1600534 (Forum Feb. 26, 2015) (“The Panel agrees that the respondent’s apparent phishing attempt provides further indication that the respondent lacks any rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”); see also Chevron Intellectual Property LLC v. Thomas Webber / Chev Ronoil Recreational Sport Limited, FA 1661076 (Forum Mar. 15, 2016) (finding that the respondent had failed to provide a bona fide offering of goods or services or any legitimate noncommercial or fair use, stating, “Respondent is using an email address to pass themselves off as an affiliate of Complainant. Complainant presents evidence showing that the email address that Respondent has created is used to solicit information and money on false pretenses. The disputed domain name is being used to cause the recipients of these emails to mistakenly believe Respondent has a connection with Complainant and is one of the Complainant’s affiliates.”). Here, Complainant provided email correspondence between Respondent and a third party whereby Respondent attempts to lure the third party into disclosing personal information under the false pretense that Respondent is an affiliate or employee of Complainant. Respondent was attempting to impersonate an employee of Complainant for the purpose of collecting Internet users’ personal information. Respondent’s use of the disputed domain name for a phishing scheme violates Policy ¶¶4(a)(ii), 4(c)(i) and (iii).
Respondent is using the <bloomberg.pw> domain name to pass himself off as an employee or affiliate of Complainant for the purpose of collecting Internet users’ personal information. Phishing for Internet user’s information under the guise of an affiliate of a complainant is evidence of bad faith under Policy ¶ 4(a)(iii). See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use).
In light of the fame and notoriety of Complainant’s BLOOMBERG mark, it is inconceivable that Respondent could have registered the <bloomberg.pw> domain name without actual knowledge of Complainant’s rights in the mark. Actual knowledge of a complainant's rights in the mark prior to registering the disputed domain name is evidence of bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). A respondent has actual knowledge of a complainant’s rights in a mark when a complainant’s mark is famous. See Victoria’s Secret Stores Brand Mgmt., Inc. v. Michael Bach, FA 1426668 (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).”).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bloomberg.pw> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. ((Ret.), Panelist
Dated: September 5, 2017
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page