Bloomberg Finance L.P. v. Hemant Kaushik / USA TV NEWS CORP
Claim Number: FA2303002038317
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by Madeline Kessler of Bloomberg L.P., New York, USA. Respondent is Hemant Kaushik / USA TV NEWS CORP (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bloombergtvnews.com>, registered with GoDaddy.com, LLC.
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.
The Honorable Neil Anthony Brown KC as Panelist.
Complainant submitted a Complaint to Forum electronically on March 31, 2023; Forum received payment on March 31, 2023.
On April 3, 2023, GoDaddy.com, LLC confirmed by e-mail to Forum that the <bloombergtvnews.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 April 3, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 24, 2023 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@bloombergtvnews.com. Also on April 3, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On April 28, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed The Honorable Neil Anthony Brown KC as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 made the following contentions.
Complainant, Bloomberg Finance, L.P., offers electronic trading, financial news, analytics, and information businesses. Complainant has rights in the BLOOMBERG NEWS mark through its registration with multiple trademark organizations including the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,266,559, registered on August 3, 1999). See Compl. Ex. A. Respondent’s <bloombergtvnews.com> domain name is identical or confusingly similar to Complainant’s BLOOMBERG NEWS mark as it incorporates the mark while adding the generic or descriptive term “tv” along with the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <bloombergtvnews.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its BLOOMBERG NEWS 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 hosts links to third-party websites.
Respondent registered and uses the <bloombergtvnews.com> domain name in bad faith. Respondent attempts to sell the domain name to Complainant. Additionally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the BLOOMBERG NEWS mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States company that offers electronic trading, financial news, analytics, and information businesses.
2. Complainant has established its rights in the BLOOMBERG NEWS mark through its registration of the mark with multiple trademark organizations including the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,266,559, registered on August 3, 1999).
3. Respondent registered the <bloombergtvnews.com> domain name on September 5, 2021.
4. Respondent has caused the disputed domain name to be used for a website that hosts links to third-party sites.
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 first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant submits that it has rights in the BLOOMBERG NEWS mark through its registration with multiple trademark organizations including the USPTO (e.g. Reg. No. 2,266,559, registered on August 3, 1999). See Compl. Ex. A. Registration of a mark with multiple trademark organizations including the USPTO is generally sufficient in demonstrating rights in a mark under Policy ¶ 4(a)(i). See Bittrex, Inc. v. Domain Privacy Services, FA 1786849 (Forum June 15, 2018) (finding Complainant has trademark rights in the BITTREX mark through registration of the mark with the EUIPO and the USPTO.). Since Complainant has registered its mark with multiple trademark organizations including the USPTO, the Panel finds that Complainant has rights in the BLOOMBERG NEWS mark under Policy ¶ 4(a)(i).
The next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s BLOOMBERG NEWS mark. Complainant argues that Respondent’s <bloombergtvnews.com> domain name is identical or confusingly similar to Complainant’s BLOOMBERG NEWS mark. Under Policy ¶ 4(a)(i), adding a generic or descriptive term along with a “.com” gTLD is insufficient in differentiating from the mark. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy); see also MTD Products Inc v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”). Complainant’s BLOOMBERG NEWS mark is incorporated into the disputed domain name while the domain name adds the generic or descriptive term “tv” along with the “.com” gTLD. As the Panel agrees, it finds that Respondent’s domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that 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”).
(a) Respondent has chosen to take Complainant’s BLOOMBERG NEWS trademark and to use it in its domain name, adding the generic or descriptive term “tv” which does not negate the confusing similarity between the domain name and the trademark;
(b) Respondent registered the disputed domain name on September 5, 2021;
(c) Respondent has caused the disputed domain name to be used for a website that hosts links to third-party sites;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant argues that Respondent is not commonly known by the <bloombergtvnews.com> domain name, nor has Complainant authorized or licensed Respondent to use its BLOOMBERG NEWS 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. See Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. 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). The WHOIS information identifies Respondent as “Hemant Kaushik / USA TV NEWS CORP.” See Registrar Verification Email. As the Panel agrees, it finds Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii);
(f) Complainant argues that Respondent is not using the <bloombergtvnews.com> domain name for any bona fide offering of goods or services, nor any noncommercial or fair use. Under Policy ¶¶ 4(c)(i) and (iii), hosting a parked page with links to third-party websites is not a bona fide offering of goods or services, nor any noncommercial or fair use. See Provide Commerce, Inc. v. e on Craze, FA1506001626318 (Forum Aug. 11, 2015) (holding that the respondent was not making 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) and 4(c)(iii) where the respondent was using the disputed domain name to host generic links to third-party websites, some of which directly competed with the complainant’s business). Complainant provides a screenshot of the resolving webpage, which hosts links to third-party websites. See Compl. Ex. G. Therefore, as the Panel agrees, it finds Respondent is not using the disputed domain name for any bona fide offering of goods or services, nor any noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, Complainant argues Respondent registered and uses the <bloombergtvnews.com> domain name in bad faith by attempting to sell it to Complainant. Under Policy ¶ 4(b)(i), offering a disputed domain name for sale is evidence of bad faith registration and use. See Airbnb, Inc. v. Super Privacy Service LTD c/o Dynadot, FA 1821386 (Forum Jan. 10, 2019) (“Complainant argues that Respondent registered and uses the <airbnbb.com> domain name in bad faith by offering it for sale. The Panel agrees and finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(i).”). Complainant provides screenshots of an email exchange with Respondent, where Respondent offers Complainant to buy the domain name. See Compl. Ex. H. Thus, as the Panel agrees, it finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(i).
Secondly, Complainant contends that Respondent registered the <bloombergtvnews.com> domain name with bad faith actual knowledge of Complainant’s rights in the BLOOMBERG NEWS mark. Under Policy ¶ 4(a)(iii), actual knowledge is generally sufficient in demonstrating bad faith, and may be established through incorporation of a well-known/registered mark into a domain name. See AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) (“Complainant contends that Respondent’s knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii).”). Complainant notes the notoriety of its mark in support of its claim that Respondent had actual knowledge of Complainant’s rights when registering the disputed domain name. As the Panel agrees, it finds that Respondent had actual knowledge of Complainant’s rights in the mark under Policy ¶ 4(a)(iii).
Thirdly, in addition and having regard to the totality of the evidence, the Panel finds that, in view of Respondent’s registration of the disputed domain name using the BLOOMBERG NEWS mark and in view of the conduct that Respondent has engaged in when using the disputed domain name, Respondent registered and used it in bad faith within the generally accepted meaning of that expression.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bloombergtvnews.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Neil Anthony Brown KC
Panelist
Dated: May 1, 2023
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