Bloomberg Finance L.P. v. Vladimir Dimovski
Claim Number: FA2106001949903
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by Melonie Callender of Bloomberg L.P., New York, USA. Respondent is Vladimir Dimovski (“Respondent”), Macedonia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bloombergadria.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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 7, 2021; the Forum received payment on June 7, 2021.
On June 7, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <bloombergadria.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 June 11, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 1, 2021 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@bloombergadria.com. Also on June 11, 2021, 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 July 6, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant, Bloomberg Finance L.P., offers electronic trading, financial news, analytics, and information businesses.
Complainant has rights in the BLOOMBERG mark through its registration of such mark with trademark registrars worldwide.
Respondent’s <bloombergadria.com> domain name is confusingly similar to Complainant’s BLOOMBERG mark, only differing by the addition of the term “Adria” and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <bloombergadria.com> domain name as it is not commonly known by the domain name and is neither an authorized user nor licensee of the BLOOMBERG mark. Additionally, Respondent does not use the at-issue domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use. Instead, Respondent uses the domain name to host hyperlinks to third-parties which directly compete with Complainant’s business.
Respondent registered and uses the <bloombergadria.com> domain name in bad faith. Respondent failed to respond to a cease-and-desist letter Complainant sent regarding the disputed domain name. Additionally, 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.
Complainant has trademark rights in BLOOMBERG.
Respondent is not affiliated with Complainant and is not authorized to use the BLOOMBERG mark in any capacity.
The at‑issue domain name was registered after Complainant acquired trademark rights in BLOOMBERG.
Respondent uses the at-issue domain name to address a website featuring links to third-parties which compete with Complainant’s business.
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 demonstrates rights in the BLOOMBERG mark through its registration of such mark with multiple trademark authorities worldwide as any of such registrations is sufficient to support Complainant’s rights per Policy ¶ 4(a)(i). See Teleflex Incorporated v. Leisa Idalski, FA 1794131 (Forum July 31, 2018) (“Registration of a mark with governmental trademark agencies is sufficient to establish rights in that mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <bloombergadria.com> domain name contains Complainant’s BLOOMBERG trademark followed by the generic term “ardia” with all followed by “.com,” a domain name-necessary top-level. The differences between Complainant’s trademark and the at-issue domain name does nothing to distinguish the domain name from Complainant’s mark under Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <bloombergadria.com> domain name is confusingly similar to Complainant’s BLOOMBERG trademark. See State Farm Mutual Automobile Insurance Company v. New Ventures Services, Corp, FA 1647714 (Forum Dec. 17, 2015) (finding that adding the common name “John” to complainant’s STATE FARM mark was insufficient to overcome a determination of confusing similarity.); see also 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).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Vladimir Dimovski” and the record before the Panel contains no evidence otherwise showing that Respondent is commonly known by the <bloombergadria.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <bloombergadria.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name).
Respondent’s <bloombergadria.com> domain name is used to address a webpage displaying links to third parties that compete with Complainant under the BLOOMBERG trademark. Respondent’s use of the at-issue domain name in this manner indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use of the domain name under Policy ¶ 4(c)(iii). Bloomberg Finance L.P. v. PPA Media Services / Ryan G Foo, FA1478654, (Forum Feb. 12, 2013) (“Panels have refused to recognize rights or legitimate interests . . . when a respondent uses a disputed domain name solely for the purpose of operating a parked page featuring third-party hyperlinks”); see also, The Toronto-Dominion Bank v. GEORGE WASHERE, FA 1785311 (Forum June 7, 2018) (“Respondent’s confusingly similar <esecuretdbank.com> domain name references a website displaying links to competing third parties as well as links to Complainant and various unrelated third parties. Using the domain name in this manner shows 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).”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
Respondent’s <bloombergadria.com> domain name was registered and used in bad faith. As discussed in the paragraphs below without limitation, circumstances are present which compel the Panel to conclude that Respondent acted in bad faith regarding the at-issue domain name under paragraph 4(a)(iii) of the Policy.
Respondent registered and used its <bloombergadria.com> domain name to address a webpage featuring links to Complainant’s competitors. Respondent’s use of its confusingly similar domain name to improperly trade off the goodwill associated with Complainant’s trademark so as to attract internet users to Respondent’s website disrupts Complainant’s business and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶¶ 4(b)(iii) and (iv). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because [r]espondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”); see also Nestlé Waters North America, Inc. v. Domain Administrator / Fundacion Privacy Services LTD, FA 1792308 (Forum July 22, 2018) (Finding Respondent uses the domain names to point to a site which offers links relating to Complainant’s business. “Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating likelihood of confusion with the Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site likely to disrupt the business of the Complainant.”).
Moreover, Respondent had actual knowledge of Complainant’s rights in the BLOOMBERG mark when it registered <bloombergadria.com> as a domain name. Respondent’s actual knowledge is evident from the widespread and long term notoriety of Complainant’s BLOOMBERG trademark and from Respondent’s use of the domain name to host a parking webpage featuring links to Complainant’s competitors. 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).”); see also, Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name);
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bloombergadria.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: July 7, 2021
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