Bloomberg Finance L.P. v. Domain Investor / THIS DOMAIN IS FOR SALE
Claim Number: FA1806001794449
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by Brendan T. Kehoe of Bloomberg L.P., New York, USA. Respondent is Domain Investor / THIS DOMAIN IS FOR SALE (“Respondent”), Georgia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bloombergalarabiya.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 known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 29, 2018; the Forum received payment on June 29, 2018.
On June 29, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <bloombergalarabiya.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 July 3, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 23, 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@bloombergalarabiya.com. Also on July 3, 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 July 27, 2018, 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 it is one of the largest providers of financial news and data in the world, and uses the BLOOMBERG mark in connection with its goods and services. Complainant has rights in the mark based upon registration in the United States in 2003.
Complainant alleges that the disputed domain name is confusingly similar to Complainant’s BLOOMBERG mark as it merely adds the descriptive term “ Al Arabiya” along with the “.com” generic top-level domain (“gTLD”) to Complainant’s mark.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not permitted or licensed to use Complainant’s BLOOMBERG mark and is not commonly known by the disputed domain name. Additionally, 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 uses the disputed domain name to divert Internet users to Respondent’s website where Respondent hosts links which redirect users to third-party websites.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. Respondent attempted to sell the disputed domain name to Complainant. Furthermore, Respondent failed to respond to Complainant’s cease and desist letter. Finally, 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 has rights in the mark BLOOMBERG dating back to at least 2003.
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 contains advertising links to third party web sites.
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 confusingly similar to Complainant’s mark, as it incorporates the mark and merely adds the descriptive term “Al Arabyia” and the “.com” gTLD to the mark. Adding a descriptive term and a gTLD to a mark does not distinguish the disputed domain name from the mark under Policy ¶ 4(a)(i). See Traditional Medicinals, Inc. v. Flippa Chick, FA1006001328702 (Forum July 15, 2010) (“Respondent’s disputed domain name contains Complainant’s SMOOTH MOVE 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 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). Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use its mark 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)). Additionally, lack of evidence in the record to indicate that the respondent had been authorized to register a domain name using a complainant’s mark supports a finding that Respondent does not have rights or legitimate interests in a disputed domain name. See 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). Here, the WHOIS information identifies Respondent as “Domain Investor / THIS DOMAIN IS FOR SALE”. The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Respondent uses the disputed domain name to resolve to a parking webpage that contains advertising links to third party websites. Use of a domain name to host a parked webpage that contains third party links may not be considered to be a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Priceline.com LLC v. levesque, bruno, FA1506001625137 (Forum July 29, 2015) (“The Panel finds that Respondent’s attempt to divert Internet users who are looking for products relating to Complainant’s famous mark to a website unrelated to the mark does not engage in a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it make a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Therefore, the Panel finds that Respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii). Further, the Panel finds that Respondent does not have rights or legitimate interests with respect to the disputed domain name.
Complainant provides evidence to the effect that Respondent offered to sell the disputed domain name to Complainant. But Complainant does not provide any evidence regarding the requested price. Thus Complainant has not proven that Respondent attempted to sell the disputed domain name “for valuable consideration in excess of [its] documented out-of-pocket costs directly related to the domain name” per Policy ¶ 4(b)(i).
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 already noted, Respondent uses the disputed domain name to attract internet users for commercial gain through using a confusingly similar domain name to resolve to a website offering various sponsored listings. Panels have found a respondent to have acted in bad faith under Policy ¶ 4(b)(iv) where a respondent used a domain confusingly similar to another’s mark to profit from commercial links. See Bank of Am. Fork v. Shen, FA 699645 (Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites). Consequently, the Panel finds that Respondent has registered and is using the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bloombergalarabiya.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 27, 2018
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