Bloomberg Finance L.P. v. Domain Provider
Claim Number: FA1702001715660
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by William M. Ried of Bloomberg L.P., New York, USA. Respondent is Domain Provider (“Respondent”), New Jersey, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bloombergg.net>, registered with Internet Domain Service BS Corp.
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 February 2, 2017; the Forum received payment on February 2, 2017.
On February 6, 2017, Internet Domain Service BS Corp confirmed by e-mail to the Forum that the <bloombergg.net> domain name is registered with Internet Domain Service BS Corp and that Respondent is the current registrant of the name. Internet Domain Service BS Corp has verified that Respondent is bound by the Internet Domain Service BS Corp 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 February 6, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 27, 2017 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@bloombergg.net. Also on February 6, 2017, 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 March 6, 2017, 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 registered the BLOOMBERG mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,736,744, registered July 15, 2003). See Compl., at Attached Ex. B. Respondent’s <bloombergg.net> mark is confusingly similar as it fully incorporates the BLOOMBERG mark and only differs by adding an additional “g” to the end of the mark, and the generic top-level domain (“gTLD”) “.net.”
Respondent has no rights or legitimate interests in <bloombergg.net>. There is no evidence that Respondent listed in the WHOIS information is commonly known by the BLOOMBERG mark. Additionally, Complainant has not licensed or otherwise permitted Respondent to use Complainant’s marks or to use a domain name with the marks. The domain name does not point to a functioning website, thus does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Respondent registered and is using the <bloombergg.net> domain name in bad faith. Respondent must have had actual knowledge of Complainant’s marks, as Complainant has a strong reputation, a high-profile presence in the financial and media sectors, is the subject of substantial consumer recognition and goodwill, and has continuously used the domain name <bloomberg.com> since 1993.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered <bloombergg.net> on June 2, 2016.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s famous trademark, BLOOMBERG; that Respondent has no rights or legitimate interests in or to the disputed domain name; and that Respondent has engaged in bad faith use and registration of the disputed domain name.
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 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 (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 the disputed domain name, <bloombergg.net>, is confusingly similar to Complainant’s valid, subsisting and famous trademark, BLOOMBERG. Complainant has adequately plead its rights and interests in and to the trademark. Respondent arrives at the disputed domain name by merely adding a “g” to the end of Complainant’s trademark and adding the g TLD “.net.” This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark.
Further, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent has no license or permission to register the disputed domain name. Respondent is not commonly known by the disputed domain name.
WHOIS identifies “Domain Provider” as the registrant. See Compl., at Attached Exhibit E. Complainant argues there is no evidence that Respondent had ever been known by the disputed domain name prior to its registration. Therefore, the Panel finds that Respondent is not known by the disputed domain name.
The Panel also finds that Respondent’s actions are not a bona fide offering of goods or services or a legitimate noncommercial or fair use because the domain name directs users to a non-functioning webpage. Complainant argues that the disputed domain name resolves to a webpage with the message “Network Error dns_server_failure.” Prior Panels have concluded that this conduct demonstrates lack of a bona fide offering of goods or services or a legitimate noncommercial or fair use according to Policy ¶¶ 4(c)(i) and 4(c)(iii), respectively. See Hewlett-Packard Co. v. Shemesh, FA 434145 (Forum Apr. 20, 2005) (finding that a respondent’s non-use of a domain name that is identical to a complainant’s mark is not 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)). The Panel, therefore, finds that Respondent’s actions are not a bona fide offering of goods or services or a legitimate noncommercial or fair use and, as such, Respondent has no rights or legitimate interests in or to the disputed domain name.
The Panel further finds that Respondent engaged in bad faith use and registration of the disputed domain name. While Complainant does not make any contentions that fall within the articulated provisions of Policy ¶ 4(b) regarding bad faith use and registration, these provisions are meant to be merely illustrative of bad faith. Respondent’s bad faith may be demonstrated by ancillary allegations considered under the totality of the circumstances. See Digi Int’l Inc. v. DDI Sys., FA 124506 (Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith).
The Panel finds, therefore, that Respondent must have intended to profit from the diversion that registration of the disputed domain name would create. The Panel further finds that, given the fame of Complainant’s trademark and the totality of the circumstances, Respondent registered the disputed domain name with actual knowledge of Complainant’s prior interests in and to the trademark BLOOMBERG.
As such, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <bloombergg.net> domain name be transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: March 6, 2017
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