Bloomberg Finance L.P. v. almila yagmur
Claim Number: FA2203001990643
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by Melonie Callender of Bloomberg L.P., New York, USA. Respondent is almila yagmur (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bloombergbtv.com>, registered with Dynadot, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 31, 2022; the Forum received payment on March 31, 2022.
On April 2, 2022, Dynadot, LLC confirmed by e-mail to the Forum that the <bloombergbtv.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 April 5, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 25, 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@bloombergbtv.com. Also on April 5, 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 May 1, 2022, 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 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 Complainant is the Bloomberg Terminal service, which provides access to news, analytics, communications, charts, liquidity, functionalities, and trading services. Complainant also operates a television network, Bloomberg Television, which is commonly associated with the mark BTV. There are currently over 320,000 Bloomberg Terminal subscribers worldwide. Complainant is headquartered in New York City, and employs 19,000 people in 176 locations around the world. Complainant has rights in the BLOOMBERG and BTV marks through their registration in the United States in, respectively, 2008 and 2003. The BLOOMBERG mark is well known.
Complainant alleges that the disputed domain name is virtually identical and confusingly similar to its marks because it combines the BLOOMBERG and BTV marks and adds the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent has no legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed Respondent any rights in the BLOOMBERG or BTV marks. Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent is using the disputed domain name to trade on Complainant’s global reputation by offering the disputed domain name for sale to the public at an undisclosed price.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith by offering it for sale at an undisclosed price. 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 owns rights in the marks BLOOMBERG and BTV and uses them to provide financial news and data and related goods and services, including through a TV channel associated with the BTV mark. The BLOOMBERG mark is well known.
Complainant’s rights in its marks date back to, respectively, at least 2008 and 2003.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent offers the disputed domain name for sale for an undisclosed price.
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 combines Complainant’s BLOOMBERG and BTV marks and merely adds the “.com” gTLD. The combination of marks and the addition of a gTLD fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Textron Innovations Inc. v. Sheng Liang / Sarawina, FA 1622906 (Forum July 20, 2015) (finding confusing similarity under Policy ¶ 4(a)(i) where Respondent’s <greenleetextron.com> domain name merely combined Complainant’s TEXTRON and GREENLEE marks and added the “.com” generic top-level domain suffix.). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant’s marks per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its marks. Respondent is not commonly known by 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 Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sept. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”). Here, the WHOIS of record identifies the registrant as “almila yagmur”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
There is no evidence that Respondent registered the domain name for any other purpose than to offer it for sale. While offering to sell a domain name may be a legitimate activity, the Panel finds, as explained below, that, in this specific case, the offer for sale constitutes bad faith use under the Policy and does not demonstrate rights or legitimate interests. See Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Forum Nov. 6, 2000) (“Registering a domain name that infringes upon the Complainant’s mark and offering it for sale is not a bona fide offering of goods and services under Policy ¶ 4.c.(i)”); see also SS8 Networks, Inc. v. Qiu Shengjie, FA 95507 (Forum Oct. 4, 2000) (finding no rights in the domain name where the Respondent was holding the domain name for sale). Thus, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). And the Panel finds that Respondent does not have 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 marks. 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 names.
The WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”) states under 3.1.1:
Generally speaking, panels have found that the practice as such of registering a domain name for subsequent resale (including for a profit) would not by itself support a claim that the respondent registered the domain name in bad faith with the primary purpose of selling it to a trademark owner (or its competitor).
Circumstances indicating that a domain name was registered for the bad-faith purpose of selling it to a trademark owner can be highly fact-specific; the nature of the domain name (e.g., whether a typo of a famous mark, a domain name wholly incorporating the relevant mark plus a geographic term or one related to the complainant’s area of commercial activity, or a pure dictionary term) and the distinctiveness of trademark at issue, among other factors, are relevant to this inquiry.
…
If on the other hand circumstances indicate that the respondent’s intent in registering the disputed domain name was in fact to profit in some fashion from or otherwise exploit the complainant’s trademark, panels will find bad faith on the part of the respondent. While panel assessment remains fact-specific, generally speaking such circumstances, alone or together, include: (i) the respondent’s likely knowledge of the complainant’s rights, (ii) the distinctiveness of the complainant’s mark, … (vii) failure of a respondent to present a credible evidence-backed rationale for registering the domain name … .
Particularly where the domain name at issue is identical or confusingly similar to a highly distinctive or famous mark, panels have tended to view with a degree of skepticism a respondent defense that the domain name was merely registered for legitimate speculation (based for example on any claimed dictionary meaning) as opposed to targeting a specific brand owner.
…
In the instant case, Complainant’s BLOOMBERG mark is well-known; the disputed domain name combines two of Complainant’s marks; Respondent has not provided any explanation for its use of Complainant’s marks; Respondent used a privacy service, that is, it attempted to conceal its identity; and, as explained below, the Panel finds that Respondent was aware of Complainant’s rights in its marks.
Given these circumstances, the Panel finds that, in this particular case, a finding of bad faith use, in the sense of the Policy, can be inferred from the general offer to sell the disputed domain name for an undisclosed price. See Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Forum Nov. 6, 2000) (finding that “general offers to sell the domain name, even if no certain price is demanded, are evidence of bad faith”).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: it is not conceivable that Respondent combined Complainant’s well known BLOOMBERG mark with Complainant’s BTV mark without knowing of the marks. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes 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 <bloombergbtv.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: May 2, 2022
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