Bloomberg Finance L.P. v. National Debt / Tim Shannon
Claim Number: FA1809001806843
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by Brendan T. Kehoe of Bloomberg L.P., New York, USA. Respondent is National Debt / Tim Shannon (“Respondent”), Minnesota, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <bloombergterminaldata.com> and <bloombergterminalscreenshots.com>, registered with Name.com, Inc..
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 19, 2018; the Forum received payment on September 19, 2018.
On September 19, 2018, Name.com, Inc. confirmed by e-mail to the Forum that the <bloombergterminaldata.com> and <bloombergterminalscreenshots.com> domain names are registered with Name.com, Inc. and that Respondent is the current registrant of the names. Name.com, Inc. has verified that Respondent is bound by the Name.com, Inc. 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 September 20, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 10, 2018 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@bloombergterminaldata.com, postmaster@bloombergterminalscreenshots.com. Also on September 20, 2018, 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 October 15, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson 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 is one of the largest providers of financial news and data in the world, and uses the BLOOMBERG mark in connection with its goods and services. Complainant has rights in the mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,736,744, registered on July 15, 2003). Respondent’s <bloombergterminaldata.com> and <bloombergterminalscreenshots.com> domain names are confusingly similar to Complainant’s BLOOMBERG mark as Respondent merely adds the descriptive terms “terminal,” coupled with either “screenshots” or “data,” and appends the “.com” generic top-level domain (“gTLD”) to Complainant’s mark.
Respondent has no rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names and Complainant has not granted Respondent permission or license to use the BLOOMBERG mark for any purpose. Additionally, Respondent is not using the disputed domain names to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent offered the <bloombergterminaldata.com> and <bloombergterminalscreenshots.com> domain names for sale for an amount in excess of out-of-pocket costs. In addition, the disputed domain names host links to third party websites.
Respondent registered and is using the <bloombergterminaldata.com> and <bloombergterminalscreenshots.com> domain names in bad faith. Respondent attempts to sell the disputed domain names for an amount in excess of out-of-pocket costs. In addition, Respondent attempts to resell Complainant’s products for commercial gain. Respondent failed to respond to Complainant’s cease and desist letter. Furthermore, Respondent must have had actual and/or constructive notice of Complainant’s mark before registering the domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Bloomberg Finance L.P. of New York, NY, USA. Complainant is the owner of domestic and international registrations for the mark BLOOMBERG, and numerous related marks constituting the family of BLOOMBERG marks. Complainant has continuously used its mark since at least 1987 in connection with its provision of goods and services in the financial information industry. Complainant also operates its business on the internet through several websites it owns including, but not limited to, <bloomberg.com>, <bloomberg.net> and <bloomberg.org>.
Respondent is National Debt / Tim Shannon, of Stillwater, MN, USA. Respondent’s registrar’s address is listed as unknown. The Panel notes that the <bloombergterminaldata.com> and <bloombergterminalscreenshots.com> domain names were both created on or about July 14, 2018.
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.”).
Complainant claims rights in the BLOOMBERG mark based upon its registration with the USPTO. Registration of a mark with the USPTO is sufficient to establish rights in a mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). Complainant provides a list of its USPTO registrations for the BLOOMBERG mark (Reg. No. 2,736,744, registered July 15, 2003) and its variations. The Panel notes that Complainant does not provide an exact copy of its USPTO registration for the BLOOMBERG mark, but does include the registration number and registration date. The Panel here finds that Complainant has established rights in BLOOMBERG mark per Policy ¶ 4(a)(i).
Complainant contends that Respondent’s <bloombergterminaldata.com> and <bloombergterminalscreenshots.com> domain names are confusingly similar to the BLOOMBERG mark as Respondent incorporates Complainant’s BLOOMBERG mark and adds the descriptive terms “terminal” and either “data” or “screenshots” and appends the “.com” gTLD to the mark. Adding a descriptive term and a gTLD to a mark does not distinguish the disputed domain name from the mark under Policy ¶ 4(a)(i). See Traditional Medicinals, Inc. v. Flippa Chick, FA1006001328702 (Forum July 15, 2010) (“Respondent’s disputed domain name contains Complainant’s SMOOTH MOVE mark in its entirety after removing the space separating the terms of the mark, adds the descriptive terms “herbal tea” and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds that the addition of descriptive terms creates a confusing similarity between the disputed domain name and Complainant’s mark.”); see also See Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). The Panel here finds that the <bloombergterminaldata.com> and <bloombergterminalscreenshots.com> domain names are confusingly similar to Complainant’s BLOOMBERG mark per Policy ¶ 4(a)(i).
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel recognizes that 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 shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the 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). The Complainant has met this burden.
Complainant argues that Respondent has no rights or legitimate interests in the <bloombergterminaldata.com> and <bloombergterminalscreenshots.com> domain names as Respondent is not commonly known by the disputed domain names, nor has Complainant authorized Respondent to use the BLOOMBERG mark in any way. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Additionally, lack of evidence in the record to indicate that the respondent had been authorized to register a domain name using a complainant’s mark supports a finding that Respondent does not have rights or legitimate interests in a disputed domain names. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). Complainant provides relevant WHOIS information which identifies Respondent as “National Debt / Tim Shannon.” Based on the WHOIS information and the Respondent’s failure to contest Complainant’s assertions the Panel here finds that under Policy ¶ 4(c)(ii) Respondent has not been commonly known by the disputed domain names.
Complainant further argues that Respondent fails to make a bona fide offering of goods or services as Respondent is offering to sell the <bloombergterminaldata.com> and <bloombergterminalscreenshots.com> domain names for an amount in excess of out-of-pocket expenses. Offering a disputed domain name for an amount in excess of out-of-pocket expenses is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See University of Rochester v. Park HyungJin, FA1410001587458 (Forum Dec. 9, 2014) (“The Panel finds Respondent’s willingness to sell this <perifacts.com> domain name in excess of out-of-pocket registration costs weighs against Respondent’s case for rights or legitimate interests in the domain name.”). Complainant argues that Respondent offered to sell the <bloombergterminaldata.com> and <bloombergterminalscreenshots.com> domain names for $10,000, an amount far in excess of Respondent’s actual cost. The Panel here finds that Respondent does not make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
Complainant further alleges that Respondent uses the disputed domain names to host parked webpages that contain links to third party websites. Use of a domain name to host a parked webpage that contains pay-per-click third party links may not be considered to be a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”). Here, Complainant provides screenshots of the dispute domain names’ resolving websites that show links to third party websites, which Complainant indicates are pay-per-click links. The Panel here finds that the Respondent lacks rights or legitimate interests with respect to the disputed domain names pursuant to Policy ¶¶ 4(c)(i) or (iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).
The Complainant has proven this element.
Complainant argues that Respondent registered and is using the disputed domain names in bad faith. Specifically, Complainant alleges that Respondent attempts to sell the <bloombergterminaldata.com> and <bloombergterminalscreenshots.com> domain names. Offering a domain name for sale for far more than its estimated out-of-pocket costs incurred in initially registering the disputed domain name is evidence of bad faith per Policy ¶ 4(b)(i). See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA1506001625332 (Forum July 17, 2015) (“A respondent’s general offer to sell a disputed domain name for an excess of out-of-pocket costs is evidence of bad faith under Policy ¶ 4(b)(i).”). As previously mentioned, Respondent offered to sell the <bloombergterminaldata.com> and <bloombergterminalscreenshots.com> domain names for $10,000, an amount far in excess of Respondent’s actual cost. The Panel finds that Respondent registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(i).
Further, Complainant claims Respondent attempts to disrupt Complainant’s business and attract, for commercial gain, users to the disputed domain names to resell Complainant’s products. Using a confusingly similar domain name to disrupt a complainant’s business and commercially benefit from selling a complainant’s products can support bad faith registration and use per Policy ¶¶ 4(b)(iii) and (iv). See Fanuc Ltd v. Mach. Control Servs., FA 93667 (Forum Mar. 13, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) by creating a likelihood of confusion with the complainant's mark by using a domain name identical to the complainant’s mark to sell the complainant’s products); see also A Guess? IP Holder L.P. and Guess?, Inc. v. LI FANGLIN, FA 1610067 (Forum Apr. 25, 2015) (finding respondent registered and used the domain name in bad faith per Policy ¶ 4(b)(iii) because the respondent used the resolving website to sell the complainant’s products, using images copied directly from the complainant’s website). Here, Complainant contends that Respondent expressed his intent to resell Bloomberg data and screenshots in an effort to make a profit. The Panel here finds that Respondent registered and uses the disputed domain name in bad faith pursuant Policy ¶¶ 4(b)(iii) and/or (iv).
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <bloombergterminaldata.com> and <bloombergterminalscreenshots.com> domain names be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: October 29, 2018
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