Bloomberg Finance L.P. v. Mr. Vladimirs Fokins / media-agency-ltd
Claim Number: FA1708001743430
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by Amin Kassam of Bloomberg L.P., New York, USA. Respondent is Mr. Vladimirs Fokins / media-agency-ltd (“Respondent”), Latvia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bloombergsbusinessweek.com>, registered with Google Inc.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 7, 2017; the Forum received payment on August 10, 2017.
On August 10, 2017, Google Inc. confirmed by e-mail to the Forum that the <bloombergsbusinessweek.com> domain name is registered with Google Inc. and that Respondent is the current registrant of the name. Google Inc. has verified that Respondent is bound by the Google Inc. 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 15, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 5, 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@bloombergsbusinessweek.com. Also on August 15, 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 September 8, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that, since the inception of its business in 1981, and the adoption of the BLOOMBERG name in 1987, it has become one of the largest providers of global financial news and data and related goods and services; it is recognized and trusted worldwide as a leasing source of financial information and analysis. There are currently over 300,000 subscribers to one of its services. Complainant employs 19,000 people in 192 offices around the world. In 2009, Complainant bought the magazine Business Week and the associated trademark rights. Complainant has rights in the mark the marks BUSINESS WEEK, BLOOMBERG, and BLOOMBERG BUSINESSWEEK, which were registered in the United States in 1951, 2003, and 2013, respectively. The marks are also registered elsewhere around the world and they are very well known.
According to Complainant, the disputed domain name is identical or confusingly similar to Complainant’s marks as the disputed domain name includes each of the three marks in their entirety, adds only the letter “s” between the marks BLOOMBERG and BUSINESS WEEK, misspells the mark BLOOMBERG BUSINESSWEEK by adding an “s”, and appends the generic top-level domain (“gTLD”) “.com.”
Complainant alleges that Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not granted Respondent permission or license to use Complainant’s marks for any purpose. Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent is using the disputed domain name in order to trade upon Complainant’s global reputation: the resolving web site displays a news article related to Complainant and the Complainant’s BLOOMBERG trademark.
Further, says Complainant, Respondent has registered and used the disputed domain name in bad faith. Respondent must have had actual and/or constructive notice of Complainant’s mark before registering the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the marks BUSINESS WEEK, BLOOMBERG, and BLOOMBERG BUSINESSWEEK, with rights dating back to, respectively, 1951, 2003, and 2013. The marks are very well known around the world.
The disputed domain name was registered in 2017.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain names to resolve to a web site that displays Complainant’s BLOOMBERG mark and an article related to Complainant.
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.”).
The disputed domain name is identical or confusingly similar to the marks BLOOMBERG and BUSINESS WEEK as it combines the marks and adds the letter “s” in between them along with the gTLD “.com; it is also identical or confusingly similar to the mark BLOOMBERG BUSINESSWEEK as it differs from that mark only by adding the letter “s”. Further, if BUSINESS WEEK were not a mark, the disputed domain name would be confusingly similar to the BLOOMBERG mark, as the name contains the mark in its entirety, merely adding the letter “s,” the descriptive term “businessweek,” and the gTLD “.com.” The addition of a descriptive term does not distinguish a domain name from a mark, and may even increase the confusing similarity of the domain name. See Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (finding that by adding the term “security” to the complainant’s VANCE mark, which described the complainant’s business, the respondent “very significantly increased” the likelihood of confusion with the complainant’s mark). Adding or deleting the letter “s” to a mark does not distinguish the domain name from the mark incorporated therein. LodgeWorks Partners, L.P. v. Isaac Goldstein / POSTE RESTANTE, FA 1717300 (Forum Apr. 5, 2017) (“The Panel agrees; Respondent’s <archerhotels.com> is confusingly similar to complainant’s ARCHER HOTEL mark.”). Similarly, the addition of a gTLD is irrelevant in determining whether the disputed domain name is confusingly similar. See Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Consequently, the Panel finds that the disputed domain name is confusingly similar, in the sense of the Policy, to Complainant’s marks.
Complainant has not authorized Respondent to use its marks in any way. Respondent is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). The Panel notes that the WHOIS information of record identifies Respondent as “Mr. Vladimirs Fokins / media-agency-ltd.” The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Respondent fails to make a bona fide offering of goods or services as Respondent is using the infringing Domain Name in order to trade upon Complainant’s global reputation: the resolving web site displays Complainant’s BLOOMBERG mark and an article related to Complainant. Using a mark to trade off the reputation of a complainant is not considered a bona fide offering of goods or services. See Bloomberg L.P v. Bloomberg Realty (India) Private Limited, FA 1204001439263 (Forum May 30, 2012)(“Use of a domain name which intentionally trades on the fame of another cannot constitute a bona fide offering of goods and services”); see also Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name); see also Kmart of Mich., Inc. v. Cone, FA 655014 (Forum April 25, 2006) (The panel found the respondent’s attempt to pass itself of as the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii) when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website). Accordingly, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as noted above, Respondent is using the disputed domain name to disrupt Complainant’s business through incorporating Complainant’s marks in its domain name, by displaying the Complainant’s BLOOMBERG mark on the resolving web page, and using the resolving website to display an article related to Complainant. This can impede the user’s ability to reach Complainant’s legitimate website and constitutes bad faith use under the Policy. See Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where the respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that the complainant is the source of or is sponsoring the services offered at the site); see also Am. Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) by displaying the complainant’s mark on its website and offering identical services as those offered by the complainant); see also Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where the respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that the complainant is the source of or is sponsoring the services offered at the site). Accordingly, the Panel finds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Further, the disputed domain name is merely a misspelling of Complainant’s BLOOMBERG BUSINESSWEEK mark. This constitutes typosquatting. Previous panels have held that typosquatting is evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Nextel Commc’ns Inc. v. Geer, FA 477183 (Forum July 15, 2005) (finding that the respondent’s registration and use of the <nextell.com> domain name was in bad faith because the domain name epitomized typosquatting in its purest form); see also The Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Forum Oct. 28, 2004) (“By engaging in typosquatting, [r]espondent has registered and used the <vangard.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).”).
Thus the Panel finds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bloombergsbusinessweek.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 8, 2017
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