Bloomberg Finance L.P. v. Dahra Hargaalga
Claim Number: FA2205001995311
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by Madeline Kessler of Bloomberg L.P., New York, USA. Respondent is Dahra Hargaalga (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bloombergcryptotrade.com>, registered with Hosting Concepts B.V. d/b/a Registrar.eu.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 6, 2022; the Forum received payment on May 6, 2022.
On May 18, 2022, Hosting Concepts B.V. d/b/a Registrar.eu confirmed by e-mail to the Forum that the <bloombergcryptotrade.com> domain name is registered with Hosting Concepts B.V. d/b/a Registrar.eu and that Respondent is the current registrant of the name. Hosting Concepts B.V. d/b/a Registrar.eu has verified that Respondent is bound by the Hosting Concepts B.V. d/b/a Registrar.eu 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 19, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 8, 2022 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@bloombergcryptotrade.com. Also on May 19, 2022, 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 15, 2022, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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, Bloomberg Finance LP, is a news, technology, and analytics company. Complainant has rights in the BLOOMBERG mark through its registration of the mark with various trademark agencies (e.g. Korean Intellectual Property Office (“KIPO”) Reg. No. 113,526, registered Mar. 7, 2005; United States Patent and Trademark Office (“USPTO”) Reg. No. 2,736,744, registered Jul. 15, 2003). Respondent’s <bloombergcryptotrade.com> domain name is identical or confusingly similar to Complainant’s mark as it incorporates the mark in its entirety and adds the word “cryptotrade” along with the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <bloombergcryptotrade.com> domain name. Respondent is not commonly known by the disputed domain name, nor has the Complainant authorized or licensed Respondent to use its BLOOMBERG mark in the disputed domain name. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use, but instead intends to trade on the goodwill and fame related to Complainant’s mark.
Respondent registered and uses the <bloombergcryptotrade.com> domain name in bad faith. Respondent failed to respond to a demand letter sent by Complainant. Furthermore, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the BLOOMBERG mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, based upon the uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <bloombergcryptotrade.com> domain name.
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”).
Complainant argues that Respondent’s <bloombergcryptotrade.com> domain name is identical or confusingly similar to Complainant’s BLOOMBERG mark. Under Policy ¶ 4(a)(i), generally adding a word relating to Complainant’s business along with the “.com” gTLD is insufficient in differentiating a disputed domain name from the mark. See The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) (“[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i).”). The disputed domain name incorporates Complainant’s BLOOMBERG mark in its entirety and adds the term “cryptotrade”, which is related to Complainant’s business, along with the “.com” gTLD. The Panel finds that Respondent’s domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”). The Panel finds that Complainant has made a prima facie case.
Complainant argues that Respondent is not commonly known by the <bloombergcryptotrade.com> domain name, nor has Complainant authorized or licensed Respondent to use its BLOOMBERG mark in the disputed domain name. Under Policy ¶ 4(c)(ii), where a response is lacking, relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name, while a lack of evidence demonstrating otherwise may affirm a Complainant’s assertion that it never authorized or licensed Respondent to use its mark in the disputed domain name. See Deutsche Lufthansa AG v. Mohamed elkassaby, FA 1801815 (Forum Sept. 17, 2018) (“The WHOIS lists “Mohamed elkassaby” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).”). The WHOIS record identifies Respondent as “Dahra Hargaalga”, and nothing in the record rebuts Complainant’s assertion that it never authorized or licensed Respondent to use its BLOOMBERG mark in the disputed domain name. The Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant argues that Respondent is not using the <bloombergcryptotrade.com> domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use because it took advantage of the goodwill associated with Complainant’s mark to attempt to legitimize its alleged cryptocurrency trading platform. Under Policy ¶ 4(c)(i) and (iii), using a disputed domain name to benefit from the goodwill associated with complainant’s mark does not constitute any bona fide offering of goods or services, nor any legitimate noncommercial or fair use. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Complainant provides screenshots of the disputed domain name’s resolving website, which, although now parked, initially displayed Complainant’s BLOOMBERG mark and claimed to be a cryptocurrency trading platform, while inviting users to submit their personal information. The Panel finds that Respondent is not using the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use under Policy ¶ 4(c)(i) and (iii) and Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has proved this element.
Complainant argues that Respondent registered the <bloombergcryptotrade.com> domain name with bad faith actual knowledge of Complainant’s rights in the BLOOMBERG mark. Under Policy ¶ 4(a)(iii), actual knowledge is sufficient in demonstrating bad faith. See Google Inc. v. Ahmed Humood, FA1411001591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to and in competition with Complainant.”). The Panel finds from the fame of Complaint’s mark and the use made of the domain name that Respondent had actual knowledge of Complainant’s rights in the mark under Policy ¶ 4(a)(iii).
Complainant further argues bad faith because Respondent has failed to response to its demand letter. Failure to respond to a demand letter may be evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Seiko Epson Corporation v. Ashish Sen, FA 1702054 (Forum Dec. 12, 2016) (finding that failing to respond to a cease-and-desist demand letter constitutes bad faith). Complainant provides a copy of its demand letter sent to Respondent’s email address on March 3, 2022 and to the registrant contact form on Respondent’s registrar’s website on April 5, 2022, which it claims Respondent has failed to respond to.
The Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant has proved this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <bloombergcryptotrade.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
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