Bloomberg Finance L.P. v. Erdem Onaran / Erdem Onaran
Claim Number: FA1510001643375
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by William M. Ried of Bloomberg L.P., New York, United States. Respondent is Erdem Onaran / Erdem Onaran (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bloomberg24.com>, registered with Nics Telekomünikasyon Ticaret Ltd. Sti.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 21, 2015; the Forum received payment on October 21, 2015. The Complaint was submitted in both Turkish and English.
On October 27, 2015, Nics Telekomünikasyon Ticaret Ltd. Sti. confirmed by e-mail to the Forum that the <bloomberg24.com> domain name is registered with Nics Telekomünikasyon Ticaret Ltd. Sti. and that Respondent is the current registrant of the name. Nics Telekomünikasyon Ticaret Ltd. Sti. has verified that Respondent is bound by the Nics Telekomünikasyon Ticaret Ltd. Sti. 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 30, 2015, the Forum served the turkish Complaint and all Annexes, including a turkish Written Notice of the Complaint, setting a deadline of November 19, 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@bloomberg24.com. Also on October 30, 2015, the turkish 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 November 23, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 has become 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. Complainant has 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 demonstrates its rights in its mark. See Attached Exhibit A for additional information regarding Complainant’s USPTO registration. The <bloomberg24.com> domain name is confusingly similar to Complainant’s mark as it incorporates Complainant’s mark in its entirety and merely adds the number “24” and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the disputed domain name. First, Respondent is not commonly known by the disputed domain name or any variant of Complainant’s mark. Second, Respondent is not licensed or authorized to use Complainant’s mark. Finally, Respondent is not making a bona fide offering of goods or services through the disputed domain name or a legitimate noncommercial or fair use. Rather, Respondent’s disputed domain name currently resolves to a Turkish news site, which displays the current financial news of the day in Turkey. See Attached Exhibit G for a screenshot of Respondent’s resolving webpage.
Respondent has demonstrated bad faith pursuant to Policy ¶ 4(a)(iii) by registering the disputed domain name with actual knowledge of Complainant’s mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name was registered on February 24, 2015.
The Panel finds that the disputed domain name is confusingly similar to the registered and famous trademark of the Complainant, that the Respondent has no rights or legitimate interests in or to the disputed domain name, and that the Respondent engaged in bad faith use and registration of the disputed domain name.
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Turkish language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
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(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.”).
The Panel finds that there is no doubt that the disputed domain name is confusingly similar to the Complainant’s registered and famous trademark. Complainant’s rights in or to the its trademark are adequately shown with its registration of the BLOOMBERG mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,736,744, registered July 15, 2003). To arrive at the disputed domain name, Respondent has merely added the number “24” and the gTLD “.com” to the trademark. This is insufficient to distinguish the disputed domain name from the Complainant’s trademark.
The Panel finds that Respondent has no rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Respondent is not commonly known by the disputed domain name or any variant of Complainant’s mark. Further, Respondent has no license or authorization to use Complainant’s mark. The WHOIS information merely lists “Erdem Onaran / Erdem Onaran” as registrant of the disputed domain name. Respondent has failed to provide any evidence for the Panel’s consideration to counter this conclusion.
As such, the Panel finds no basis in the available record to find Respondent commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).
The Panel further finds that the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Specifically, Complainant argues that Respondent’s disputed domain name currently resolves to a Turkish news site, which displays the current financial news of the day in Turkey. Attached Exhibit G shows a screenshot of Respondent’s resolving webpage. Previous panels have held that there is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii) where a respondent uses a disputed domain name to divert Internet users to a competing website. See Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting Internet users to a competing commercial site).
As such, the Panel finds that Respondent is not using the disputed domain name in connection with 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, therefore, has no rights or legitimate interests in or to the disputed domain name.
While Complainant does not make any contentions that fall within the articulated provisions of Policy ¶ 4(b), these provisions are meant to be merely illustrative of bad faith. The Respondent’s bad faith may be demonstrated by ancillary allegations considered under the totality of the circumstances. See CBS Broad., Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (“[T]he Policy expressly recognizes that other circumstances can be evidence that a domain name was registered and is being used in bad faith”).
As such, the Panel finds that, under a totality of the circumstances, Respondent registered and is using the disputed domain name in bad faith. The Respondent uses Complainant’s famous trademark to divert Internet users to its web site for apparent commercial gain.
Further, given the fame of the Complainant’s trademark, it is not conceivable that this was done innocently and there is no evidence in the record to suggest that it was. As such, the Panel finds that Respondent registered the disputed domain name with actual knowledge of Complainant’s mark, thereby violating Policy ¶ 4(a)(iii). The totality of circumstances includes the Complainant’s reputation, high-profile presence, and Respondent’s use of the BLOOMBERG mark. This all leads inescapably to the conclusion that Respondent was aware of Complainant’s mark before registering the disputed domain name. Past panels have found evidence of bad faith pursuant to Policy ¶ 4(a)(iii) where a respondent was actually aware of a complainant’s mark at the time the disputed domain name was registered. See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration).
Accordingly, the Panel finds that Respondent registered and used the disputed domain name with actual knowledge of Complainant’s mark under Policy ¶ 4(a)(iii) and in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <bloomberg24.com> domain name transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: December 1, 2015
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