Bloomberg Finance L.P. v. Huan Li Liu / Guang Zhou Shi Jia Tong Ming Chuan Tou Zi Zi Xun You Xian Gong Si
Claim Number: FA1803001779567
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by Brendan T. Kehoe of Bloomberg L.P., New York, USA. Respondent is Huan Li Liu / Guang Zhou Shi Jia Tong Ming Chuan Tou Zi Zi Xun You Xian Gong Si (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bloombergai.com>, registered with HiChina Zhicheng Technology Limited.
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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 29, 2018; the Forum received payment on March 29, 2018.
On March 29, 2018, HiChina Zhicheng Technology Limited confirmed by e-mail to the Forum that the <bloombergai.com> domain name is registered with HiChina Zhicheng Technology Limited and that Respondent is the current registrant of the name. HiChina Zhicheng Technology Limited has verified that Respondent is bound by the HiChina Zhicheng Technology Limited 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 April 9, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 30, 2018 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@bloombergai.com. Also on April 9, 2018, 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 May 4, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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.
Language of the Proceedings
The Registration Agreement is written in Chinese, thereby making the language of the proceedings in Chinese. Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
4(a)(i): Complainant, Bloomberg Finance L.P., is one of the largest providers of global financial news and data and related goods and services and is recognized and trusted worldwide as a leading source of financial information and analysis. Complainant has operated under the Bloomberg name in the United States and around the world since 1987 and has been in business since 1981. Complainant owns over 3,000 domain names incorporating the BLOOMBERG mark and has rights in the BLOOMBERG mark based upon registration with Untied States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,736,744, registered July 15, 2003). Respondent’s <bloombergai.com> is identical or confusingly similar to Complainant’s BLOOMBERG mark as it fully incorporates the BLOOMBERG mark and adds only the letters “ai”.
4(a)(ii): Respondent has no rights or legitimate interest in the <bloombergai.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, license, or otherwise permitted Respondent to use the mark. Respondent does not the domain name for a bona fide offering of goods or services or for a legitimate noncommercial or fair use, but rather uses the disputed domain name to direct users to a non-functioning webpage.
4(a)(iii): Respondent registered and uses the <bloombergai.com> domain name in bad faith. Due the Complainant’s worldwide reputation and presence in financial and media sectors, Respondent had knowledge of the existence of the Complainant’s trademarks. In addition, Respondent has failed to respond to Complainant’s attempts to resolve this dispute outside of this administrative proceeding which supports a finding of bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel notes that Respondent registered the <bloombergai.com> domain name on January 6, 2018.
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 asserts rights in the BLOOMBERG mark based upon registration with the USPTO. Registration of a mark with a trademark authority such as the USPTO is sufficient to establish rights in said mark pursuant to Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”) Complainant indicates it registered the BLOOMBERG mark with the USPTO (e.g. Reg. 2,736,744, registered July 15, 2003). Therefore, the Panel finds that Complainant has rights in the BLOOMBERG mark per Policy ¶ 4(a)(i).
Next, Complainant argues Respondent’s <bloombergai.com> domain name is confusingly similar to Complainant’s mark, as the disputed domain name incorporates Complainant’s mark in its entirety, and adds the generic letters “ai.” Similar changes have been found insufficient to withstand a test of confusing similarity pursuant to Policy ¶ 4(a)(i). See Twentieth Century Fox Film Corporation v Domain Admin / PrivacyProtect.org / Denis Ferulev, FA 1652313 (Forum Jan. 19, 2016) (“Complainant notes that the domain name contains the recognised acronym for its FAMILY GUY mark, along with the number ‘24’ … the Panel finds that the <fg24.biz> domain name is confusingly similar to the FAMILY GUY mark under Policy ¶ 4(a)(i).”); see also Twitch Interactive, Inc. v. Antonio Teggi, FA 1626528 (Forum Aug. 3, 2015) (finding the <twitcch.tv> domain name confusingly similar to the TWITCH TV trademark because the domain name consisted of a common misspelling of the mark by merely adding the letter “c.”). Thus, the Panel agrees with Complainant and finds that Respondent’s <bloombergai.com> domain name is confusingly similar to Complainant’s BLOOMBERG mark per Policy ¶ 4(a)(i).
Complainant contends that Respondent has no rights or legitimate interests in the <bloombergai.com> domain name as it is not commonly known by the name, and has not been authorized to use the BLOOMBERG mark for any purpose. Where a response is lacking, relevant information includes the WHOIS and any other assertions by a complainant regarding the nature of its relationship with a respondent. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same); see also Navistar International Corporation v. N Rahmany, FA1620789 (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). The WHOIS information of record identifies the Registrant as “ Huan Li Liu / Guang Zhou Shi Jia Tong Ming Chuan Tou Zi Zi Xun You Xian Gong Si.” Complainant alleges that Respondent has never been legitimately affiliated with Complainant, and Complainant has not given Respondent permission to use the disputed domain name. Accordingly, the Panel agrees that Respondent is not commonly known by the <bloombergai.com> domain name under Policy ¶ 4(c)(ii).
Furthermore, Complainant contends that Respondent does not use the <bloombergai.com> disputed domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Rather, Complainant claims that Respondent uses the disputed domain name <bloombergai.com> to direct users to a non-functioning webpage. As such, Respondent may be found to have no rights or legitimate interests in the disputed domain name as Respondent has failed to make use of <bloombergai.com> domain name and has not demonstrated any attempt to make legitimate use of the domain name and website, per Policy ¶¶ 4(c)(i) & (iii). See Activision Blizzard, Inc. / Activision Publishing, Inc. / Blizzard Entertainment, Inc. v. Cimpress Schweiz GmbH, FA 1737429 (Forum Aug. 3, 2017) (“Complainant insists that Respondent has made no demonstrable preparations to use the disputed domain name. When Respondent is not using the disputed domain name in connection with an active website, the Panel may find that Respondent is not using the disputed domain name for a bona fide offering of goods or services… As Respondent has not provided a response to this action, Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain”); see also Nutri/System IPHC, Inc. v. Usama Ayub, FA1725806 (Forum June 5, 2017) (holding that “Respondent does not use the <nutrisystemturbo.us> domain for a bona fide offering of goods or services because the domain name resolves to a website that currently is designated as ‘under construction.’”). Complainant includes screenshots of the website resolving from the domain name, indicating Respondent’s use of the domain name to resolve to an inactive website. Therefore, the Panel agrees that Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) & (iii).
Complainant has therefore also satisfied Policy ¶ 4(a)(ii).
Respondent registered and uses the domain name in bad faith as Respondent attempts to cause confusion, mistake, and deception among internet users. Using a confusingly similar domain name to trade off the goodwill and high profile presence of a complainant can evince bad faith under Policy ¶ 4(b)(iv). See Phat Fashions, LLC v. Kruger, FA 96193 (Forum Dec. 29, 2000) (finding bad faith under Policy ¶ 4(b)(iv) even though the respondent has not used the domain name because “it makes no sense whatever to wait until it actually ‘uses’ the name, when inevitably, when there is such use, it will create the confusion described in the Policy”). Complainant provides a screenshot of the resolving website, which displays the message “This site can’t be reached.” Accordingly, the Panel finds that Respondent registered and used the domain name to trade off the goodwill associated with Complainant’s mark in bad faith under Policy ¶ 4(b)(iv).
In addition, Complainant claims that Respondent had knowledge of Complainant’s BLOOMBERG mark. Actual knowledge can be determined in an analysis of the totality of the circumstances surrounding the registration and subsequent use per Policy ¶ 4(a)(iii). Complainant contends that Respondent must have had actual knowledge of Complainant’s rights in the BLOOMBERG mark based upon Respondent’s incorporation of the BLOOMBERG mark in its entirety in its domain name, Complainant’s strong reputation and high-profile presence in the financial and media sectors, and Complainant’s substantial consumer recognition and goodwill. The Panel agrees with Complainant and finds that Respondent had actual knowledge of Complainant’s mark, demonstrating bad faith under Policy ¶ 4(a)(iii).
Thus, Complainant has also satisfied 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 <bloombergai.com> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: May 18, 2018
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