Bloomberg Finance L.P. v. rose norman
Claim Number: FA1905001843917
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by Brendan T. Kehoe of Bloomberg L.P., New York, USA. Respondent is rose norman (“Respondent”), Philippines.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bloomberg-fund.com> registered with NameCheap, Inc..
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 May 20, 2019; the Forum received payment on May 20, 2019.
On May 20, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <bloomberg-fund.com> 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 May 24, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 13, 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-fund.com. Also on May 24, 2019, 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 June 18, 2019, 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. One of the many products and services offered by Bloomberg is the Bloomberg Terminal® service, which provides access to news, analytics, communications, charts, liquidity, functionalities, and trading services. There are currently over 320,000 Bloomberg 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 registrations around the world, including in the United States in 2003.
Complainant alleges that the disputed domain name is confusingly similar to its BLOOMBERG mark as it fully incorporates the mark and merely adds the descriptive term “fund.”
According to Complainant, Respondent has no rights or legitimate interests in the disputed 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 uses the domain name to trade upon Complainant’s global reputation: the resolving website offers financial services that are not related to Complainant.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent intends to trade off the goodwill of the Complainant’s mark and create a likelihood of confusion by implying an affiliation to Complainant. Further, Respondent failed to reply to Complainant’s cease and desist letter. Additionally, Respondent had actual knowledge of Complainant’s rights in the BLOOMBERG marks given Complainant’s strong reputation and a high-profile presence in the financial and media sectors.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark BLOOMBERG and uses it to provide global financial news and data and related goods and services. The mark is famous.
Complainant’s rights in its marks date back to at least 2003.
The disputed domain name was registered in 2019.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website purports to provide financial services not related to Complainant. The WHOIS information is false.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The disputed domain name fully incorporates Complainant’s BLOOMBERG mark along with the descriptive term “fund”, a hyphen, and the gTLD “.com”. Such changes are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. 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 Bloomberg Finance L.P. v. Sunny Bhadauria, FA 1786429 (Forum June 7, 2018) (finding the <bloombergquint.org> domain name to be confusingly similar to the complainant’s BLOOMBERG mark, as the name consists of the mark, the added term “quint” (which refers to the complainant’s Indian business partner “Quintillian Media”) and the gTLD “.org”); 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). The Panel therefore finds that the <bloomberg-fund.com> domain name is confusingly similar to Complainant’s BLOOMBERG mark per Policy ¶ 4(a)(i).
Respondent is not licensed or authorized to use the BLOOMBERG mark. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 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.). Here, the WHOIS information of record identifies Respondent as “rose norman”. The Panel therefore finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The resolving website purports to offer financial services not related to Complainant. Thus, Respondent uses the domain names to trade upon Complainant’s global reputation. Using a domain name to trade upon the fame and notoriety of a mark can evince a failure to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy. See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Accordingly, the Panel finds that Respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent lacks rights or legitimate interests in the disputed domain name.
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 attempt to create a likelihood of confusion by implying an affiliation with Respondent, and to profit thereby by offering financial services. Using a confusingly similar domain name to trade upon the goodwill of a complainant’s mark can evince bad faith under Policy ¶ 4(b)(iv). See Red Bull GmbH v. Gutch, D2000-0766 (WIPO Sept. 21, 2000) (finding that the respondent’s expected use of the domain name <redbull.org> would lead people to believe that the domain name was connected with the complainant, and thus is the equivalent to bad faith use); see also Bloomberg L.P. v. Brian Johnston, FA0607000760084 (Forum Oct. 25, 2006) (“The Panel finds that the registration and use of a domain name that contains Complainant’s BLOOMBERG mark in its entirety for the purpose of resolving to a financial information website causes a likelihood of confusion as to Complainant’s sponsorship of or affiliation with the resulting website”). Accordingly, the Panel finds that Respondent attempted to benefit off Complainant’s mark in bad faith under Policy ¶ 4(b)(iv).
Further, Respondent registered the disputed domain name using false WHOIS contact information: its address is given as “london city, 1234567890, Philippines, Philippines”. This can evince bad faith registration and use under Policy ¶ 4(a)(iii). See CNU ONLINE Holdings, LLC v. Domain Admin / Whois Privacy Corp., FA1504001614972 (Forum May 29, 2015) (“As the Panel sees that Respondent has provided false or misleading WHOIS information, the Panel finds bad faith in Respondent’s registration of the disputed domain name per Policy ¶ 4(a)(iii).”); see also ABB Asea Brown Boveri Ltd v. Global Mgr, FA 1702001716963 (NAF Mar. 30, 2017) (“Complainant contends that Respondent provided false contact information while registering the disputed domain. Registering a confusingly similar domain name using false contact information can evince bad faith registration.”); see also j2 Global Canada, Inc. and Landslide Technologies, Inc. v. Vijay S Kumar/Strategic Outsourcing Services Pvt Ltd, FA 1411001647718 (NAF Jan. 4, 2016) (“False or misleading contact information indicates bad faith registration and use.”); see also Chevron Intellectual Property LLC v. Phillip Thomas/Chevron Pacific, FA 1504001615524 (NAF May 29, 2015) (“Complainant’s use of false registration data and its unexplained redirection of the disputed domain name to Complainant’s own website are further indications of such bad faith.”); see also McDonald’s Corp. v. Holy See, FA 0304000155458 (NAF June 27, 2003) (“The Panel finds that Respondent provided false contact information in the registration certificates and that such actions, even though not specifically enumerated in the Policy, may form the basis for a finding of bad faith registration and use.”); see also Mars, Incorporated v. RaveClub Berlin, FA 0106000097361 (NAF July 16, 2001) (providing false registration and contact information for infringing domain names evidenced Respondent’s bad faith). Accordingly, the Panel finds that Respondent registered and is using the disputed 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 <bloomberg-fund.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 18, 2019
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