Bloomberg Finance L.P. v. guan bing
Claim Number: FA1902001829221
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by Brendan T. Kehoe of Bloomberg L.P., New York, USA. Respondent is guan bing (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bloomberg-pasture.com>, registered with Shanghai Best Oray Information S&T Co., Ltd..
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 8, 2019; the Forum received payment on February 8, 2019. The Complaint was received in both Chinese and English.
On February 25, 2019, Shanghai Best Oray Information S&T Co., Ltd. confirmed by e-mail to the Forum that the <bloomberg-pasture.com> domain name is registered with Shanghai Best Oray Information S&T Co., Ltd. and that Respondent is the current registrant of the name. Shanghai Best Oray Information S&T Co., Ltd. has verified that Respondent is bound by the Shanghai Best Oray Information S&T Co., Ltd. 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 March 5, 2019, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of March 25, 2019 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-pasture.com. Also on March 5, 2019, the Chinese language 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 March 27, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant has become one of the largest providers of global and financial news and is trusted worldwide as a leading source of financial information and analysis.
Complainant has rights in the BLOOMBERG mark through its trademark registrations around the world, including the United States Patent and Trademark Office (“USPTO”).
Respondent’s <bloomberg-pasture.com> domain name is confusingly similar to Complainant’s BLOOMBERG mark as it fully incorporates the mark along with the term “pasture.”
Respondent has no rights or legitimate interests in the <bloomberg-pasture.com> domain name. Respondent is not licensed or otherwise permitted to use Complainant’s BLOOMBERG mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent has demanded payment for the disputed domain name.
Respondent registered and uses the <bloomberg-pasture.com> domain name in bad faith. After Complainant sent a cease and desist letter, Respondent offered to sell the disputed domain name for 100,000 RMB (approx. $15,000). Furthermore, Respondent had actual knowledge of Complainant’s rights in the BLOOMBERG mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the BLOOMBERG mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the BLOOMBERG trademark.
Respondent registered and uses the at-issue domain name to offer it for sale 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.”).
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
The at-issue domain name is identical to a trademark in which Complainant has rights.
Complainant’s USPTO trademark registration for BLOOMBERG is conclusive evidence of its rights in a mark under Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Additionally, Respondent’s <bloomberg-pasture.com> domain name contains Complainant’s entire BLOOMBERG trademark followed by a hyphen suffixed with the suggestive term “pasture” and all followed by the top-level domain name “.com.” The differences between Complainant’s trademark and Respondent’s at-issue domain name fail to distinguish the domain name from the mark under Policy ¶ 4(a)(i). Therefore, the Panel finds that Respondent’s <bloomberg-pasture.com> domain name is confusingly similar to Complainant’s BLOOMBERG trademark. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)); see also Daniel Handler v. Masanori Toriimoto / PLAN-B Co.,Ltd, FA 1778986 (Forum May 7, 2018) (finding that hyphens and top-level domains are irrelevant for purposes of the Policy).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
WHOIS information for the at-issue domain name identifies the domain name’s registrant as “guan bing” and the record before the Panel contains no evidence that otherwise tends to prove that Respondent is commonly known by the <bloomberg-pasture.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <bloomberg-pasture.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent registered and uses the resolving website of the disputed domain name to offer the confusingly similar <bloomberg-pasture.com> domain name for sale to Complainant for an amount in excess of Respondent’s out-of-pocket costs. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See University of Rochester v. Park HyungJin, FA1410001587458 (Forum Dec. 9, 2014) (“The Panel finds Respondent’s willingness to sell this <perifacts.com> domain name in excess of out-of-pocket registration costs weighs against Respondent’s case for rights or legitimate interests in the domain name.”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below Policy ¶ 4(b) bad faith circumstances as well as other circumstances are present from which the Panel may conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
As mentioned above regarding rights and interests, Respondent offered the at-issue domain name for sale to Complainant for an amount in excess of its out-of-pocket costs – having asked RMB 100,000 (or about $15,000 USD) for the <bloomberg-pasture.com> domain name. Registering and using a confusingly similar domain name so that it may be sold to Complainant for a profit is evidence of bad faith per Policy ¶ 4(b)(i). See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA1506001625332 (Forum July 17, 2015) (“A respondent’s general offer to sell a disputed domain name for an excess of out-of-pocket costs is evidence of bad faith under Policy ¶ 4(b)(i).”).
Moreover, Respondent had actual knowledge of Complainant’s rights in the BLOOMBERG mark when it registered the <bloomberg-pasture.com> domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s trademark. Registering and using a confusingly similar domain name with knowledge of Complainant’s rights in such domain name indicates bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name).
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-pasture.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: March 28, 2019
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