Bloomberg Finance L.P. v. Hasan Sencan
Claim Number: FA1803001779568
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by Brendan T. Kehoe of Bloomberg L.P., New York, USA. Respondent is Hasan Sencan (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bloomberghthaber.com>, registered with Nics Telekomünikasyon Tic Ltd. Sti.
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.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 29, 2018; the Forum received payment on March 29, 2018.
On April 18, 2018, Nics Telekomünikasyon Tic Ltd. Sti. confirmed by e-mail to the Forum that the <bloomberghthaber.com> domain name is registered with Nics Telekomünikasyon Tic Ltd. Sti. and that Respondent is the current registrant of the name. Nics Telekomünikasyon Tic Ltd. Sti. has verified that Respondent is bound by the Nics Telekomünikasyon Tic Ltd. Sti. 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@bloomberghthaber.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 2, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. 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
i) Complainant, Bloomberg Finance L.P. (commonly known as Bloomberg) 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 worldwide registrations, including with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,736,744, registered July 15, 2003). See Compl. Ex. B. Respondent’s <bloomberghthaber.com> is identical or confusingly similar to Complainant’s BLOOMBERG mark, as it fully incorporates the BLOOMBERG mark and adds only the generic term “haber” meaning “news” in Turkish.
ii) Respondent has no rights or legitimate interest in the <bloomberghthaber.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 uses 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 host advertising links to third-party websites.
iii) Respondent registered and uses the <bloomberghthaber.com> domain name in bad faith. Due the Complainant’s worldwide reputation and presence in financial and media sectors, Respondent had actual or constructive 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. See Compl. Ex. H.
B. Respondent
Respondent did not submit a Response.
i) Respondent registered the disputed domain name on February 2, 2018.
ii) Complainant established rights in the BLOOMBERG mark through its registration with the USPTO (e.g. Reg. 2,973,101, registered July 15, 2003).
iii) The WHOIS information of record identifies the Registrant as “Hasan Sencan.”
iv) The disputed domain name hosts pay-per-click hyperlinks.
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 right 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. 2,973,101, registered July 15, 2003). See Compl. Ex. B. Therefore, the Panel finds Complainant has rights in the BLOOMBERG mark per Policy ¶ 4(a)(i).
Next, Complainant argues Respondent’s <bloomberghthaber.com> domain name is confusingly similar to Complainant’s TD mark, as the disputed domain name incorporates Complainant’s in its entirety, and adds the generic term “haber”. The Panel also notes—though Complainant does not argue—that the disputed domain name also incorporates the letters “ht” and the “.com” generic top-level domain (“gTLD”). Similar changes have been found insufficient to withstand a test of confusing similarity pursuant to Policy ¶ 4(a)(i). See Dell Inc. v. Protection of Private Person / Privacy Protection, FA 1681432 (Forum Aug. 1, 2016) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs; see also YETI Coolers, LLC v. Randall Bearden, FA 16060016880755 (Forum Aug. 10, 2016) (finding that the words “powder coating” in the <yetipowdercoating.com> domain name are “merely explicative and directly refer to some of the services rendered by the Complainant” and, therefore, create an “irrefutable confusing similarity” to complainant’s YETI mark); see also Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy). The Panel agrees with Complainant and finds Respondent’s <bloomberghthaber.com> domain name is confusingly similar to Complainant’s BLOOMBERG mark per Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that 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 does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant contends that Respondent has no rights or legitimate interests in the <bloomberghthaber.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, FA1505001620789 (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 “Hasan Sencan.” See Compl. Ex. E. 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 <bloomberghthaber.com> domain name under Policy ¶ 4(c)(ii).
Furthermore, Complainant contends that Respondent does not use the <bloomberghthaber.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 Respondent uses the disputed domain name to host advertising links to third-party websites. As such, Respondent may be found to have no rights or legitimates interests in the disputed domain name per Policy ¶¶ 4(c)(i) and (iii). See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering); see also TGI Friday’s of Minnesota, Inc. v. Tulip Company / Tulip Trading Company, FA 1691369 (Forum Oct. 10, 2016) (”Respondent uses the domain for a parking page displaying various links that consumers are likely to associate with Complainant, but that simply redirect to additional advertisements and links that divert traffic to third-party websites not affiliated with Complainant… The Panel here finds that Respondent is not using the domain name in connection with a bona fide offering of goods or services.”). Complainant includes screenshots of the website resolving from the domain name, indicating Respondent’s use of the domain name to host pay-per-click hyperlinks. See Compl. Ex. G. 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).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Respondent registered and uses the <bloomberghthaber.com> 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 3M Company v. Nguyen Hoang Son / Bussiness and Marketing, FA1408001575815 (Forum Sept. 18, 2014) (finding that the respondent’s use of the disputed domain name to host sponsored advertisements for Amazon, through which the respondent presumably profited, indicated that the respondent had used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv)); see also Tumblr, Inc. v. Ailing Liu, FA1402001543807 (Forum Mar. 24, 2014) (“Bad faith use and registration exists under Policy ¶ 4(b)(iv) where a respondent uses a confusingly similar domain name to resolve to a website featuring links and advertisements unrelated to complainant’s business and respondent is likely collecting fees.”). Complainant includes screenshots of the website resolving from the domain name, indicating Respondent’s use of the domain name to host pay-per-click hyperlinks. See Compl. Ex. G. 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 contends that Respondent must have known of Complainant’s right in the BLOOMBERG mark, prior to registering the disputed domain name. A respondent’s actual knowledge of a complainant’s rights in a mark can be presumed when the mark is sufficiently famous. See Nw. Airlines, Inc. v. Koch, FA 95688 (Forum Oct. 27, 2000) (“[T]he selection of a domain name [<northwest-airlines.com>] which entirely incorporates the name of the world’s fourth largest airline could not have been done in good faith”). Complainant avers that the domain is almost identical to the BLOOMBERG mark, included a generic term, “haber”, meaning in “news” in Turkish, which relates to the Complainant’s business as one of the largest providers of global financial news and data and related goods and services. See Compl. Ex. F. Complainant also cites multiple UDRP cases in which the panels found the BLOOMBERG mark to be sufficiently famous to presume the respondent’s knowledge of the mark. See, e.g., Bloomberg L.P. v. The International Capital Group, Inc., FA 96607 (Forum Mar. 27, 2001) (“. . . given the worldwide nature of Complainant’s business and development of its mark, it is reasonable to conclude that the Respondent knew or had constructive notice of Complainant’s well-established mark prior to registering the disputed domain name. This also is evidence of bad faith”). Given the notoriety of Complainant’s mark and use of domain name by the Respondent, the Panel infers that Respondent had prior knowledge of Complainant’s rights in the BLOOMBERG mark and thus registered the 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 <bloomberghthaber.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: May 7, 2018
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