Bloomberg Finance L.P. v. Andreas Leere
Claim Number: FA1507001629058
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by William M. Ried of Bloomberg L.P., New York, USA. Respondent is Andreas Leere (“Respondent”), Germany.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bloomberg.market>, registered with eNom, Inc.
The undersigned certifies that she acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the Forum electronically July 15, 2015; the Forum received payment July 15, 2015.
On July 17, 2015, eNom, Inc. confirmed by e-mail to the Forum that the <bloomberg.market> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. verified that Respondent is bound by the eNom, Inc. registration agreement and thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On July 21, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 10, 2015, 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@bloomberg.market. Also on July 21, 2015, 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 August 12, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the record, the Administrative Panel (the "Panel") finds that the Forum 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.
I. Complainant’s Contentions in this Proceeding:
Complainant uses the BLOOMBERG mark in connection with its provision of financial data, news, and analysis. Complainant registered the BLOOMBERG mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,736,744, registered July 15, 2003), which establishes rights in the mark. Respondent’s <bloomberg.market> domain name incorporates the BLOOMBERG mark fully and merely adds the generic top-level domain (“gTLD”) “.market” suffix, rendering the name confusingly similar to the mark.
Respondent has no rights or legitimate interests in the disputed domain name. Nothing in the record denotes that Respondent is commonly known by the disputed domain name. Further, Respondent has not utilized the disputed domain name with any bona fide offering of goods or services or for any legitimate noncommercial or fair use. Instead, Respondent used the disputed domain name to post a fake report that manipulated the value of stock in a third-party entity. See Compl., at Attached Exs. H and K. It also seems as if Respondent inactively held the web site for a time. See Compl., at Attached Ex. I.
Respondent registered and used the disputed domain name in bad faith as it was involved in a scheme to provide commercial benefit to a third-party by posting false information. Such use may be considered attraction for commercial gain as per the language of Policy ¶ 4(b)(iv). As the Policy ¶ 4(b) elements are non-exclusive, the Panel is urged to find that Respondent’s registration and use constitutes bad faith per Policy ¶ 4(a)(iii) based on the fraudulent misrepresentation. See Compl., at Attached Ex. G (titled, “Twitter Attracts Suitors”).
II. Respondent’s Contentions in this Proceeding:
Respondent failed to submit a Response.
Respondent registered the <bloomberg.market> domain name July 10, 2015.
Complainant established that it has protected rights to and legitimate interests in the mark contained in the disputed domain name.
Respondent has no such rights or legitimate interests in the mark or domain name.
The domain name is confusingly similar to Complainant’s protected mark.
Respondent registered and used the disputed domain name in bad faith.
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 Complainant to 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.
Given 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 will draw such inferences as the Panel 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.”).
Identical or Confusingly Similar:
Complainant uses the BLOOMBERG mark in connection with its provision of financial data, news, and analysis. Complainant alleges it registered the BLOOMBERG mark with the USPTO (e.g., Reg. No. 2,736,744, registered July 15, 2003), and argues that its registrations evidence rights under Policy ¶ 4(a)(i). Panels have agreed where a USPTO registration exists, Policy ¶ 4(a)(i) rights follow, even where a respondent operates or resides in a different country. See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”). Accordingly, this Panel agrees that Complainant established Policy ¶ 4(a)(i) rights in the BLOOMBERG mark.
Next, Complainant argues that Respondent’s <bloomberg.market> domain name incorporates the BLOOMBERG mark fully and merely adds the gTLD “.market” suffix, rendering the name confusingly similar to the mark. Panels have agreed that adding a gTLD to a fully incorporated mark does nothing to reduce confusing similarity. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Therefore, this Panel finds that the disputed domain name is confusingly similar to the BLOOMBERG mark under Policy ¶ 4(a)(i).
Respondent makes no contentions relative to Policy ¶ 4(a)(i).
The Panel finds that Respondent registered a domain name that is confusingly similar to Complainant’s protected mark; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Rights or Legitimate Interests:
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), and then the burden of proof shifts to Respondent to show it does have such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that complainant must first make a prima facie case that respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent has no rights or legitimate interests in the disputed domain name. The Panel notes that nothing in the record shows Respondent to be commonly known by the disputed domain name. The Panel also notes that Respondent failed to submit a Response to support any use by Respondent to support a finding of Policy ¶ 4(c)(ii) in its favor. In light of the available evidence, this Panel finds that Respondent is not commonly known by the <bloomberg.market> domain name under Policy ¶ 4(c)(ii). See Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding without demonstrable evidence to support the assertion that a respondent is commonly known by a domain name, the assertion must be rejected).
Further, Complainant urges that Respondent has not used the disputed domain name in any bona fide offering of goods or services or for any legitimate noncommercial or fair use. Instead, Respondent allegedly used the disputed domain name to post a fake report that manipulated the value of stock in a third-party entity. See Compl., at Attached Ex. G (purportedly fake article entitled “Twitter Attracts Suitors”); see also Compl., at Attached Exs. H and K (media attention surrounding Respondent’s presumably fake article). Panels have found that fraudulent misrepresentations intended to confuse Internet users and to commercially gain for oneself as constituting neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Summit Group, LLC v. LSO, Ltd., FA 758981 (Nat. Arb. Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either 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)). This Panel agrees that Respondent’s use of the <bloomberg.market> domain name fails to satisfy Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii).
The Panel notes Complainant’s Attached Exhibit I, which seems to demonstrate Respondent’s failure to make an active use of the disputed domain name. Complainant alleges that once the aforementioned fake article gained media recognition, use of the domain was suspended and currently resolves to a blank page displaying the message: “Network Error.” The Panel agrees that inactively holding a disputed domain name for some two months fails to evidence rights and legitimate interests, especially where no evidence has been submitted identifying planned usage of the domain name, and this Panel finds that Respondent failed to satisfy the requirements of Policy ¶¶ 4(c)(i) or (iii); or Policy ¶ 4(a)(ii) generally. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Nat. Arb. Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that Respondent failed to make an active use of the domain name and therefore, Respondent failed to make a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and failed to make a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”); see also U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Nat. Arb. Forum Apr. 9, 2007) (“Respondent’s failure to associate content with its disputed domain name evinces a lack of rights and legitimate interests pursuant to Policy ¶ 4(a)(ii).”).
Respondent makes no contentions relative to Policy ¶ 4(a)(ii).
The Panel finds that Respondent has no rights to or legitimate interests in the disputed domain name; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Registration and Use in Bad Faith:
Complainant alleges that Respondent registered and used the disputed domain name in bad faith when Respondent participated in a scheme to provide commercial benefit to a third-party by posting false information. Respondent’s use of the website to post such an article was submitted to the Panel as Exhibit G. Examination of the presumed fraudulent article by third-party media sources is shown in Exhibits H and K, also attached to the Complaint. UDRP precedent recognizes many different uses by respondents that support findings of bad faith as per the language of Policy ¶ 4(b)(iv). See, e.g., Hancock Fabrics, Inc. v. Active Advantage, Inc., FA 204111 (Nat. Arb. Forum Dec. 4, 2003) (“Respondent’s use of the <hancockfabric.com> domain name, a domain name confusingly similar to Complainant’s HANCOCK FABRICS mark, to redirect Internet traffic to a website that provides a selection of jokes demonstrates Respondent’s bad faith use of the disputed domain name because Respondent has created a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of Respondent’s website, which evidences bad faith registration and use under Policy ¶ 4(b)(iv).”); AOL LLC v. iTech Ent, LLC, FA 726227 (Nat. Arb. Forum July 21, 2006) (finding that the respondent took advantage of the confusing similarity between the <theotheraol.com> and <theotheraol.net> domain names and the complainant’s AOL mark, which indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv)). Similarly, this Panel finds that Respondent took advantage of the confusing similarity of the <bloomberg.market> domain name with the BLOOMBERG mark for its own profit, or for the benefit of a third-party. Therefore, the Panel finds that Respondent’s conduct constitutes bad faith registration and use under Policy ¶ 4(b)(iv).
Lastly, this Panel considers Respondent’s apparent inactive holding of the <bloomberg.market> domain name for a time, another circumstance that constitutes bad faith as per Policy ¶ 4(a)(iii). Panels have agreed where no demonstrated intent to use a disputed domain name is shown, bad faith registration and use may be construed. See DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s [failure to make an active use] of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy). Therefore, this Panel agrees that Respondent’s inactive holding of the disputed domain name amounts to bad faith as per Policy ¶ 4(a)(iii).
Respondent makes no contentions relative to Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and used and then passively held the disputed domain name in bad faith; Complainant satisfied the elements of ICANN 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 <bloomberg.market> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: August 25, 2015
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page