Bloomberg Finance L.P. v. junaid mustafa / E Trend Groups
Claim Number: FA1803001774277
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by Carlos Carvajal, Colombia. Respondent is junaid mustafa / E Trend Groups (“Respondent”), Pakistan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bloomsberg.co>, registered with NameCheap, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her 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 March 1, 2018; the Forum received payment on March 1, 2018.
On March 1, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <bloomsberg.co> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 2, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 22, 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@bloomsberg.co. Also on March 2, 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. Respondent did however send an e-mail to the Forum, see below.
On March 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, since the inception of its business in 1981, and the adoption of the “Bloomberg” name in 1987, it has become 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’s substantial advertising and promotion of its marks have created significant goodwill and consumer recognition around the world. One of the many products and services offered by Bloomberg is the BLOOMBERG TERMINAL (the “TERMINAL”), which provides access to news, analytics, communications, charts, liquidity, functionalities, and trading services. There are currently over 320,000 TERMINAL subscribers worldwide. Bloomberg is headquartered in New York City, and employs 19,000 people in 176 locations around the world. Complainant has rights in the BLOOMBERG mark through its trademark registration in the United States in 2003. Moreover, Complainant and its affiliated companies have obtained registrations for marks and continually used marks containing the word BLOOMBERG in over one hundred (100) countries.
Complainant alleges that the disputed domain name is confusingly similar to its BLOOMBERG mark as Respondent adds the letter “s” and a “.co” country-code top level domain (“ccTLD”) to Complainant’s mark.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name as Respondent is not licensed or permitted to use Complainant’s BLOOMBERG mark and is not commonly known by the disputed domain name. Additionally, Respondent does not provide a legitimate, noncommercial or fair use at the disputed domain name. Instead, the resolving website displays Complainant’s name and news articles that compete with those offered by Complainant.
Further, says Complainant, Respondent is using the disputed domain name to confuse users and misappropriate the goodwill of Complainant’s BLOOMBERG mark in bad faith. Furthermore, Respondent had actual knowledge of Complainant’s rights in the BLOOMBERG mark at the time of registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. In its e-mail to the Forum, Respondent states: “what can i do for u now give me domain expense money and i will closed this domain”.
Complainant owns the mark BLOOMBERG, with rights dating back to 2003. The mark is very well known around the world.
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 website that displays Complainant’s name and news articles that compete with those offered by 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.”).
The disputed domain name is confusingly similar to Complainant’s BLOOMBERG mark as Respondent misspells Complainant’s mark and adds a ccTLD. Such changes to a complainant’s mark do not negate any confusing similarity between a disputed domain name and the mark under Policy ¶ 4(a)(i). See FCOA, LLC v. Domain Admin / Whois Privacy Corp., FA 1619791 (Forum June 23, 2015) (holding the <foresmost.com> domain name confusingly similar to the FOREMOST mark, noting that the domain name “makes a trivial addition to the trademark in the form of addition of the letter, ‘s.’”); see also ER Marks, Inc. and QVC, Inc. v. Stefan Hansmann, FA 1381755 (Forum May 6, 2011) (“Neither the addition of country code top-level domains, i.e., ‘.co.,’ ‘.de,’ ‘.cr,’ ‘.es,’ nor the insertion of a gTLD has a distinctive function”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s BLOOMBERG mark per Policy ¶ 4(a)(i).
Respondent is not authorized or permitted to use Complainant’s BLOOMBERG mark. Further, Respondent is not commonly known by the disputed domain name: in the event a respondent fails to submit a response, panels have relied on WHOIS information to determine whether respondent is commonly known by a disputed domain name per Policy ¶ 4(c)(ii). See Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the <guardair.com> domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name). The WHOIS information for the disputed domain name identifies Respondent as “junaid mustafa / E Trend Groups.” Thus, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent is not using the disputed domain name in connection with a legitimate noncommercial or fair use. Instead, the resolving web page attempts to pass off as Complainant and it provides new articles that compete with those provided by Complainant. Specifically, Complainant provides a screenshot of the disputed domain name which features a color scheme and content similar to Complainant’s own website, and a phrase stating (emphasis added): “Connecting peoples to around the world, Bloomberg quickly and accurately delivers news updates business and financial information around the world.” Passing off as a complainant at a disputed domain name is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Dream Horse Classifieds v. Mosley, FA 381256 (Forum Feb. 8, 2005) (finding the respondent’s attempt to pass itself off as the complainant by implementing a color scheme identical to the complainant’s was evidence that respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii)). Thus, the Panel finds that Respondent is not using the disputed domain name in connection with 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 has no rights or legitimate interests in the disputed domain name.
Respondent 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 is attempting to confuse users and misappropriate Complainant’s BLOOMBERG mark at the resolving website. General intent to confuse and attract users to a disputed domain name can be evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See AOL LLC v. iTech Ent, LLC, FA 726227 (Forum July 21, 2006) (finding that the respondent took advantage of the confusing similarity between the <theotheraol.com> and <theotheraol.net> domain names and the complainant’s AOL mark, which indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv)). Thus, the Panel finds that Respondent’s attempts to divert uses to the disputed domain name is evidence of bad faith registration and use per Policy ¶ 4(b)(iv).
Furthermore, Respondent had actual knowledge of Complainant’s rights in the BLOOMBERG mark at the time it registered the disputed domain name and this indicates bad faith. While constructive notice of a complainant’s mark is insufficient for a finding of bad faith, actual knowledge of a complainant’s rights in a mark can be used as evidence of bad faith registration and use per Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration). Here, Respondent’s use of the name “Bloomberg” on its website indicates that it was well aware of Complainant and its mark at the time it registered the domain name. Therefore, the Panel finds that Respondent had actual knowledge of Complainant’s rights in the BLOOMBERG mark at the time of registration, demonstrating bad faith per Policy ¶ 4(a)(iii).
Further, the disputed domain name is merely a misspelling of Complainant’s BLOOMBERG mark. This constitutes typosquatting. Previous panels have held that typosquatting is evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Nextel Commc’ns Inc. v. Geer, FA 477183 (Forum July 15, 2005) (finding that the respondent’s registration and use of the <nextell.com> domain name was in bad faith because the domain name epitomized typosquatting in its purest form); see also The Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Forum Oct. 28, 2004) (“By engaging in typosquatting, [r]espondent has registered and used the <vangard.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).”). Thus the Panel finds that Respondent registered and is using the disputed domain name in bad faith also under this ground.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bloomsberg.co> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: March 28, 2018
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