Bloomberg Finance L.P. v. Michelle Fischer
Claim Number: FA0801001139982
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by Fara
Sunderji of Willkie Farr & Gallagher LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <www-bloomberg.org>, registered with Directi Internet Solutions d/b/a PublicDomainRegistry.
The undersigned certifies that she has 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 National Arbitration Forum electronically January 24, 2008; the National Arbitration Forum received a hard copy of the Complaint January 24, 2008.
On January 24, 2008, Directi Internet Solutions d/b/a PublicDomainRegistry confirmed by e-mail to the National Arbitration Forum that the <www-bloomberg.org> domain name is registered with Directi Internet Solutions d/b/a PublicDomainRegistry and that Respondent is the current registrant of the name. Directi Internet Solutions d/b/a PublicDomainRegistry has verified that Respondent is bound by the Directi Internet Solutions d/b/a PublicDomainRegistry registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On February 12, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 3, 2008, 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@www-bloomberg.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 11, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." 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. The domain name that Respondent registered, <www-bloomberg.org>, is confusingly similar to Complainant’s BLOOMBERG mark.
2. Respondent has no rights to or legitimate interests in the <www-bloomberg.org> domain name.
3. Respondent registered and used the <www-bloomberg.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Bloomberg Finance L.P., is a worldwide leader in financial news and information. Complainant has used the BLOOMBERG mark in connection with its dissemination of news and information based on current events and financial happenings. Complainant owns a number of trademark registrations with the Ministry of Commerce and Industry Registry for the BLOOMBERG mark, (i.e. Reg. No. 724377 issued July 26, 1996).
Respondent registered the <www-bloomberg.org> domain name August 21, 2007. Respondent’s disputed domain name resolves to a website containing false news items attributed to one of Complainant’s reporters.
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."
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.”).
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.
Complainant established rights in the BLOOMBERG mark under Policy ¶ 4(a)(i) through its registration with the Indian trademark authority. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction); see also KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of paragraph 4(a)(i) of the Policy whether the complainant’s mark is registered in a country other than that of the respondent’s place of business).
Complainant contends that Respondent’s <www-bloomberg.org> domain name is confusingly
similar to Complainant’s BLOOMBERG mark.
Respondent’s disputed domain name contains Complainant’s mark, adds the
generic prefix “www,” adds a hyphen and adds the generic top-level domain
(“gTLD”) “.org.” The Panel finds that
the addition of the “www-” to Complainant’s mark does not create a distinct
domain name and is instead confusingly similar pursuant to Policy ¶
4(a)(i). See Marie Claire Album v. Blakely, D2002-1015 (WIPO
Dec. 23, 2002) (holding that the letters “www” are not distinct in the
“Internet world” and thus the respondent 's <wwwmarieclaire.com> domain
name is confusingly similar to the complainant's MARIE CLAIRE trademark); see also Neiman Marcus Group, Inc. v.
S1A, FA 128683 (Nat. Arb. Forum Dec. 6, 2002) (holding confusing similarity
has been established because the prefix “www” does not sufficiently
differentiate the <wwwneimanmarcus.com> domain name from the
complainant's NEIMAN-MARCUS mark). In
addition, the Panel holds that the addition of punctuation marks such as
hyphens and the addition of a gTLD are irrelevant in distinguishing a disputed
domain name from an established mark. See Health Devices
Corp. v.
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Complainant asserts that Respondent has no rights to or legitimate interests in the disputed domain name. When Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). The Panel finds that in this case, Complainant made a prima facie showing. See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Where Respondent fails to respond to the Complaint, the Panel is permitted to assume that Respondent does not have rights or legitimate interests in the disputed domain name. See CMGI, Inc. v. Reyes, D2000-0572 (WIPO Aug. 8, 2000) (finding that the respondent’s failure to produce requested documentation supports a finding for the complainant); see also Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”). However, this Panel also examines the evidence to determine if the proof shows that Respondent may have such rights before making a final determination.
Complainant contends Respondent is not commonly known by the
<www-bloomberg.org> domain name, and that
Complainant did not license Respondent to register domain names using the
famous BLOOMBERG mark. Respondent’s
WHOIS information identifies Respondent as “Michelle Fischer,” which gives no
affirmative evidence that Respondent is, or was ever commonly known by the
disputed domain name. Therefore, the
Panel finds that Respondent is not commonly known by the disputed domain name
pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb.
Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information
implies that Respondent is ‘commonly known by’ the disputed domain name” as one
factor in determining that Policy ¶ 4(c)(ii) does not
apply); see also Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the
WHOIS contact information for the disputed domain [name], one can infer that
Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’
in any derivation.”).
Respondent’s use of the <www-bloomberg.org> domain name is a form of typosquatting. Respondent is using the disputed domain name in a confusingly similar manner by deliberately misspelling Complainant’s mark in the hopes of misdirecting unknowing Internet users. The Panel finds that typosquatting indicates a lack of rights and legitimate interests under Policy ¶ 4(a)(ii). See Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum June 23, 2003) (holding that the respondent’s <wwwdinersclub.com> domain name, a typosquatted version of the complainant’s DINERS CLUB mark, was evidence in and of itself that the respondent lacks rights or legitimate interests in the disputed domain name vis á vis the complainant); see also Nat’l Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … as a means of redirecting consumers against their will to another site, does not qualify as a bona fide offering of goods or services, whatever may be the goods or services offered at that site.”).
The Panel finds that Respondent’s use of the <www-bloomberg.org> domain name to host a website that attempts to pass Respondent off as Complainant is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name); see also Crow v. LOVEARTH.net, FA 203208 (Nat. Arb. Forum Nov. 28, 2003) (“It is neither a bona fide offerings [sic] of goods or services, nor an example of a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) & (iii) when the holder of a domain name, confusingly similar to a registered mark, attempts to profit by passing itself off as Complainant . . . .”).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
Respondent’s use of the <www-bloomberg.org> domain name constitutes a form of typosquatting. The Panel finds that any form of typosquatting is in itself evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … is the intentional misspelling of words with [the] intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of bad faith.”); see also Black & Decker Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding the <wwwdewalt.com> domain name was registered to “ensnare those individuals who forget to type the period after the ‘www’ portion of [a] web-address,” which was evidence that the domain name was registered and used in bad faith).
In addition, the Panel finds that Respondent’s use of the <www-bloomberg.org> domain name in order to pass itself off as Complainant is further evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Monsanto Co. v. Decepticons, FA 101536 (Nat. Arb. Forum Dec. 18, 2001) (finding that the respondent's use of <monsantos.com> to misrepresent itself as the complainant and to provide misleading information to the public supported a finding of bad faith); see also Vivendi Universal Games v. Ballard, FA 146621 (Nat. Arb. Forum Mar. 13, 2002) (finding that where the complainant’s mark was appropriated at registration, and a copy of the complainant’s website was used at the domain name in order to facilitate the interception of the complainant’s customer’s account information, the respondent’s behavior evidenced bad faith use and registration of the domain name).
The Panel finds that Complainant satisfied 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 <www-bloomberg.org> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: March 20, 2008.
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