Bloomberg Finance L.P. v. Support / Logix Infosecurity Pvt Ltd.
Claim Number: FA1709001751378
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by Amin Kassam of Bloomberg L.P., New York, USA. Respondent is Support / Logix Infosecurity Pvt Ltd. (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bloombergtvindia.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 29, 2017; the Forum received payment on September 29, 2017.
On September 30, 2017, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <bloombergtvindia.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 October 2, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 23, 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@bloombergtvindia.com. Also on October 2, 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 October 26, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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
1. Complainant has rights in the BLOOMBERG mark based upon registration with the United State Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,736,744, registered July 15, 2003). Respondent’s <bloombergtvindia.com>[1] is identical or confusingly similar to Complainant’s BLOOMBERG mark as it contains the mark entirely while merely adding the generic term “tv” and the geographic term “India,” and the generic top-level domain (“gTLD”) “.com.”
2. Respondent does not have rights or legitimate interests in <bloombergtvindia.com>. Respondent is not commonly known by the domain name and Complainant has not granted Respondent permission or license to use the BLOOMBERG mark for any purpose.
3. Respondent is not using the 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 domain name to point to a non-functioning website. (displaying, “This site can’t be reached”).
4. Respondent registered and used the 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 holds trademark rights for the BLOOMBERG mark. Respondent’s domain name is confusingly similar to Complainant’s BLOOMBERG mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <bloombergtvindia.com> domain name and that Respondent registered and uses the domain name in bad faith.
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, Bloomberg Finance L.P. is a financial software, data, and media company. In connection with this business complainant uses the BLOOMBERG mark to provide and market its services. Complainant has rights in the mark based upon its registration with the USPTO (BLOOMBERG—Reg. No. 2,736,744, registered July 15, 2003). Registration of a mark with the USPTO sufficiently establishes rights in a mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Complainant next claims that Respondent’s <bloombergtvindia.com> is identical or confusingly similar to Complainant’s BLOOMBERG mark as it contains the mark entirely while merely adding the generic term “tv” and the geographic term “India,” and the gTLD “.com.” Eliminating spacing, adding “.com,” and including a geographic term do not differentiate a domain name from a mark in which a complainant has rights. See AXA China Region Ltd. v. KANNET Ltd., D2000-1377 (WIPO Nov. 29, 2000) (finding that the <axachinaregion.com> domain name “is confusingly similar to the Complainant's trade mark ‘AXA’” because “common geographic qualifiers or generic nouns can rarely be relied upon to differentiate the mark if the other elements of the domain name comprise a mark or marks in which another party has rights”); see also 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. Likewise, the absence of spaces must be disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax prohibits them.”). Moreover, adding “tv” does not distinguish a domain name from a corresponding mark. See Victoria’s Secret v. Plum Promotions, FA 96503 (Forum Feb. 27, 2001) (“The mere addition of the generic term ‘tv’ does not reduce the likelihood of confusion under Policy 4(a)(i).”). The Panel therefore concludes Respondent’s <bloombergtvindia.com> domain name is confusingly similar to Complainant’s BLOOMBERG mark under Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <bloombergtvindia.com> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant argues that Respondent has no rights or legitimate interests in the <bloombergtvindia.com> domain name because Respondent is not commonly known by the domain name, nor has Complainant authorized Respondent to use the BLOOMBERG mark in any way. Where a response is lacking, WHOS information can support a finding that a respondent is not commonly known by the domain name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.). The WHOIS information of record identifies Respondent as “Support / Logix Infosecurity Pvt Ltd.” Thus, under Policy ¶ 4(c)(ii) Respondent is not commonly known by the <bloombergtvindia.com> domain name.
Additionally, Complainant argues that Respondent is not using the 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 domain name to point to a non-functioning website which displays: “This site can’t be reached.” Where no legitimate content is associated with a domain name, no rights or legitimate interests may exist. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) (“The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii)”). The Panel agrees that Respondent’s use does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant claims that Respondent had actual knowledge of Complainant’s mark. Complainant contends that Respondent must have had actual knowledge of the BLOOMBERG mark and business because of Complainant’s strong reputation and a high-profile presence in the financial and media sectors. Moreover, the domain name incorporates the BLOOMBERG mark in its entirety. The Panel agrees. Registering a domain name with actual knowledge of a mark in which another party has rights demonstrates bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel agrees with Complainant and finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith under Policy ¶ 4(a)(iii).
The Panel finds Complainant has 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 <bloombergtvindia.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson Panelist
Dated: November 6, 2017
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