Bloomberg Finance L.P. v. Wu Yu
Claim Number: FA2109001967174
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by Melonie Callender of Bloomberg L.P., New York, USA. Respondent is Wu Yu (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bloombergstudio1.com>, (‘the Domain Name’) registered with Dynadot, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 30, 2021; the Forum received payment on September 30, 2021.
On October 1, 2021, Dynadot, LLC confirmed by e-mail to the Forum that the <bloombergstudio1.com> Domain Name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 October 5, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 25, 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@bloombergstudio1.com. Also on October 5, 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 October 28, 2021 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant is the owner of the mark BLOOMBERG registered, inter alia in Chile, the Czech Republic and South Korea for news and information services. Through a subsidiary the mark BLOOMBERG is owned in the United States. The Complainant and its affiliate companies have obtained registrations and used the BLOOMBERG mark in over 100 countries. It owns bloomberg.com which has been used since 1993. Complainant’s corporate parent Bloomberg LP has operated under the BLOOMBERG name since 1987 and uses the mark under license from the Complainant and its affiliate companies. The mark is well known.
The Domain Name registered in 2021 is confusingly similar to the Complainant’s mark fully incorporating it and adding only the generic term ‘studio’ and the number 1.
The Respondent does not have any rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The Domain Name has been offered for sale generally for US $3000 and has been used for pay per click links. This is not a bona fide offering of goods or services or a noncommercial legitimate or fair use.
The Respondent has intentionally taken advantage of the Complainant’s reputation, offered the Domain Name for sale for a sum in excess of out of pocket costs of registration and has registered and used the Domain Name in bad faith. The Respondent did not Respond to the Complainant’s cease and desist letter.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark BLOOMBERG registered, inter alia in Chile, the Czech Republic and South Korea for news and information services. Through a subsidiary the mark BLOOMBERG is owned in the United States. The Complainant and its affiliate companies have obtained registrations and used the BLOOMBERG mark in over 100 countries. It owns bloomberg.com which has been used since 1993. Complainant’s corporate parent Bloomberg LP has operated under the BLOOMBERG name since 1987 and uses the mark under license from the Complainant and its affiliate companies. The mark is well known.
The Domain Name registered in 2021 has been used for commercial pay per click links and has been offered for sale generally for US$3000.
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 Domain Name in this Complaint combines the Complainant’s well known BLOOMBERG mark (registered in a number of countries for news and information services and used by the Complainant since 1993), the generic term ‘studio’, the number ‘1’ and the gTLD “.com”.
The addition of the generic word ‘studio’ and the number ‘1’ does not prevent confusing similarity between the Domain Name and the Complainant’s BLOOMBERG mark. See Abbott Laboratories v. Miles White, FA 1646590 (Forum Dec. 10, 2015) (holding that the addition of generic terms do not adequately distinguish a disputed domain name from complainant’s mark under Policy 4(a)(i).). See also Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”).
The gTLD “.com” does not serve to distinguish the Domain Name from the BLOOMBERG mark, which is the distinctive component of the Domain Name. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the 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).
Use for pay per click links does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of .. domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Respondent has not answered this Complaint or explained why it should be allowed to register a domain name containing the Complainant’s mark which is well known.
The Domain Name containing the Complainant’s well known mark has been offered for sale generally for a sum well in excess of the costs of registration. 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).”).
Use for pay per click links indicates bad faith being disruptive of the Complainant’s business and diverting customers for commercial gain and can indicate actual knowledge of the Complainant and its business. In the opinion of the panelist the use made of the Domain Name is confusing and disruptive. 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 mark as to the source, sponsorship, affiliation or endorsement of the web site or services offered on it likely to disrupt the business of the Complainant. See Health Republic Insurance Company v. Above.comLegal, FA 1506001622088, (Forum July 10, 2015) re diversion to pay per click links.
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under 4(b)(i), (iii) and 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bloombergstudio1.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: October 29, 2021
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