Bloomberg Finance L.P. v. lordiz c/o Yunus yuksel
Claim Number: FA1002001308683
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by Marc
E. Montgomery, of Willkie Farr & Gallagher LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <bloomberg-ht.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 18, 2010; the National Arbitration Forum received a hard copy of the Complaint on February 19, 2010.
On February 24, 2010, Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com confirmed by e-mail to the National Arbitration Forum that the <bloomberg-ht.com> domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com and that Respondent is the current registrant of the name. Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com has verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On March 2, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 22, 2010 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@bloomberg-ht.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 29, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s <bloomberg-ht.com> domain name is confusingly similar to Complainant’s BLOOMBERG mark.
2. Respondent does not have any rights or legitimate interests in the <bloomberg-ht.com> domain name.
3. Respondent registered and used the <bloomberg-ht.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Bloomberg Finance L.P., has registered its BLOOMBERG mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,736,744 issued July 15, 2003). Complainant asserts to using the mark in connection with financial information and analysis services. Complainant operates numerous domain names including but not limited to the <bloomberg.com> and <bloomberght.com> domain names.
Respondent, lordiz c/o Yunus yuksel, registered the disputed domain on October 9, 2009. The disputed domain name resolves to a website with a generic search engine that offers no substantive content and states that the domain is “for sale.” Respondent has also made a specific offer to sell the disputed domain name to the Complainant for the amount of $1180 USD.
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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Complainant asserts it has rights in its BLOOMBERG mark due to its registration with the USPTO (Reg. No. 2,736,744 issued July 15, 2003). The Panel finds that Complainant’s registration of its BLOOMBERG mark with the USPTO is sufficient to establish Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i). UnitedHealth Group Inc. v. Hassan, FA 947081 (Nat. Arb. Forum May 17, 2007) (finding “no difficulty” in holding that the complainant had established rights in its asserted marks for the purposes of Policy ¶ 4(a)(i) through its trademark registrations with the USPTO); see also Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction).
Respondent’s disputed domain name is confusingly similar to Complainant’s BLOOMBERG mark because Respondent’s <bloomberg-ht.com> domain name incorporates the dominant feature of Complainant’s mark, adds a hyphen, adds the an abbreviation related to Complainant’s business (“HT” is an abbreviation of “Haber Turk” which translates to “Turkish News”), and adds the generic top-level domain “.com.” The Panel finds that such minor alterations to Complainant’s registered mark do not negate the confusingly similar aspects of Respondent’s domain name pursuant to Policy 4(a)(i). See Whitney Nat’l Bank v. Easynet Ltd, FA 944330 (Nat. Arb. Forum Apr. 30, 2007) (“The additions of generic words with an obvious relationship to Complainant’s business and a gTLD renders the disputed domain name confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).”); see also See Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Nat. Arb. Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Sports Auth. Mich. Inc. v. Batu 5, FA 176541 (Nat. Arb. Forum Sept. 23, 2003) (“The addition of a hyphen to Complainant's mark does not create a distinct characteristic capable of overcoming a Policy ¶ 4(a)(i) confusingly similar analysis.”).
The Panel finds Policy ¶ 4(a)(i)
has been satisfied.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Once Complainant has made a prima facie case in support of this, the burden to establish that Respondent has rights or legitimate interests in the disputed domain name shifts to the Respondent, pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has established a prima facie case, shifting the burden to the Respondent. In light of Respondent’s failure to respond to the proceedings, the Panel will proceed to analyze the record in light of Policy ¶ 4(c). See Domtar, Inc. v. Theriault, FA 1089426 (Nat. Arb. Forum Jan 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4 (a)(ii) of the Policy.”); see also G.D. Searle v Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy 4(a)(ii).”).
The WHOIS information for the <bloomberg-ht.com> domain name lists “lordiz c/o Yunus yuksel” as the registrant, which indicates that Respondent is not commonly known by the disputed domain name. Complainant asserts no license or other authorization has been given to Respondent to use the BLOOMBERG mark. Furthermore, Respondent has not offered any evidence to suggest that Policy ¶ 4(c)(ii) applies in this case. Without affirmative evidence, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4 (c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name); see also Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Complainant asserts that the <bloomberg-ht.com> domain name advertises a general offer to sell the disputed domain name on the website resolving from the disputed domain name. Additionally, Respondent’s specific offer to sell the disputed domain name to the Complainant, in the amount of $1180 USD, is significantly higher than the presumed cost to register the disputed domain name. Complainant further asserts that Respondent is attempting to profit with constructive knowledge of Complainant’s BLOOMBERG mark. The Panel finds that this willingness to sell the disputed domain is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a making legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the respondent’s willingness to sell a contested domain name for more than its out-of-pocket costs provided additional evidence that Respondent had no rights or legitimate interests in the contested domain name); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (concluding that a respondent’s willingness to sell a domain name to the complainant suggests that a respondent has no rights or legitimate interests in that domain name under Policy ¶ 4(a)(ii)).
The Panel finds Policy ¶ 4(a)(ii)
has been satisfied.
Complainant asserts that the disputed domain name advertises
an offer to sell the disputed domain name.
Respondent’s specific offer to sell the disputed domain name to the Complainant,
in the amount of $1180 USD, is significantly higher than the presumed cost to
Respondent to register the <bloomberg-ht.com>
domain name. Complainant further asserts that Respondent is attempting to
profit with constructive knowledge of Complainant’s BLOOMBERG mark. The Panel finds that this willingness to sell
the <bloomberg-ht.com> domain
name qualifies as bad faith registration and use pursuant to Policy ¶ 4(b)(i). See Prudential
Ins. Co. of Am. v. TPB Fin., FA 105218 (Nat. Arb. Forum Apr. 8, 2002)
(finding bad faith registration and use pursuant to Policy ¶ 4(b)(i) where the respondent offered to sell the domain name
for $900); see also Wembley Nat’l Stadium
Ltd. v. Thomson, D2000-1233 (WIPO Nov. 16, 2000) (finding bad faith based
on the apparent willingness of the respondent to sell the domain name in issue
from the outset, albeit not at a price reflecting only the costs of registering
and maintaining the name).
Complainant alleges that Respondent is engaged in the
practice of opportunistic domain name registration through the registration and
use of the <bloomberg-ht.com>
domain name. Complainant proffers a
press release from October 6, 2009 announcing its expansion into
The Panel finds Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bloomberg-ht.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: April 13, 2010
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