Bloomberg Finance L.P. v. Terry Mills
Claim Number: FA1808001802017
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by Brendan T. Kehoe of Bloomberg L.P., New York, USA. Respondent is Terry Mills (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <xn--bloombeg-m0d.com> (the “Domain Name”), registered with GoDaddy.com, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 17, 2018; the Forum received payment on August 17, 2018.
On August 20, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <xn--bloombeg-m0d.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 August 21, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 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@xn--bloombeg-m0d.com. Also on August 21, 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 September 13, 2018 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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’s contentions can be summarised as follows:
Complainant owns many registered trade marks consisting of or containing BLOOMBERG and/or BLOOMBERG.COM across the world, including the United States. It is the owner of many domain names containing the BLOOMBERG mark including <Bloomberg.com>. Complainant’s corporate group offering global financial news and data and related goods and services has operated under the BLOOMBERG name in the USA and around the world since as early as 1987.
The Domain Name registered in 2015 is confusingly similar to Complainant’s BLOOMBERG.COM mark adding only the homograph ‘r’.
Respondent is not commonly known by the Domain Name and has not been authorised by Complainant to use Complainant’s marks. The Domain Name has not been used and is simply parked, which is not a bona fide offering of goods and services or a legitimate non commercial fair use. The fact that Complainant’s mark is well known and the Domain Name so closely resembles Complainant’s mark is evidence of registration and use in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns many registered trade marks consisting of or containing BLOOMBERG and/or BLOOMBERG.COM across the world including the United States. It is the owner of many domain names containing the BLOOMBERG mark including <Bloomberg.com>. Complainant’s corporate group offering global financial news and data and related goods and services has operated under the BLOOMBERG name in the USA and around the world since as early as 1987.
The Domain Name registered in 2015 has not been used and has been parked.
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.”).
Preliminary Issue: Internationalized Domain Name/Characters
The Domain Name is an IDN. Since the “r” in the “bloomberg” label within the Domain Name is a non-ANSII character, the ToASCII program applies the Nameprep algorithm, transcribing the result to ASCII using Punycode so the Domain Name in use will read as <bloombeɾg.com>. Panels have routinely treated Punycode transcriptions of domain names as interchangeable with their IDN counterparts. Microsoft Corp. v. Harrington, FA1305319 (Forum Mar. 16, 2010) (finding <bıng.com<http://xn--bng-jua.com>> [xn--bng-jua.com<http://bng-jua.com>] confusingly similar to BING and noting, “The Panel finds that exchanging one letter for another in the disputed domain name fails to prevent confusing similarity according to Policy ¶ 4(a)(i), especially when the disputed domain name remains visually similar to Complainant’s mark”), and NIKE, Inc. and Nike Innovate, C.V. v. michal restl c/o Dynadot, FA1703001723952 (Forum May 11, 2017) (finding <nıke.com<http://xn--nke-jua.com>> [xn--nke-jua.com<http://nke-jua.com>] confusingly similar to NIKE and noting, “Panels have determined that exchanging a letter in a mark for a Unicode character fails to distinguish a domain name for the purposes of a Policy ¶ 4(a)(i) analysis of confusing similarity”).
Identical or Confusingly Similar
The Domain Name consists of a Unicode typosquatted version of Complainant's BLOOMBERG/BLOOMBERG.COM marks (which are registered, inter alia, in USA with first use recorded as 1987) and/or the gTLD “.com.” The Panel agrees that misspellings such as substitution of a letter with a non latin Unicode character does not distinguish the Domain Name from Complainant's trade marks pursuant to the Policy. See Nike Inc and Nike Innovate CV v Michael restl c/o Dynadot, FA 1703001723952 (Forum May 11, 2017).
The gTLD “.com” does not serve to distinguish the Domain Name from Complainant’s BLOOMBERG mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the <redhat.org> domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to marks in which Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
Complainant has not authorised the use of its mark. Respondent has not answered this Complaint and there is no evidence or reason to suggest Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The Domain Name registered in 2015 has not been used. See Hewlett-Packard Co. v Shemesh, FA 434145 (Forum April 20, 2005) (where the panel found inactive use is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i)).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Domain Name seeks to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the complainant’s mark and be taken to the respondent’s site is registration and use in bad faith).
Respondent has not answered this Complaint or explained why it should be allowed to register a domain name containing a sign confusingly similar to Complainant’s mark in use.
The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from or exploit the trade mark of another. Passive holding of a domain name containing a mark with a reputation can be bad faith registration and use. See Telstra Corporation Limited v Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).
As such, the Panelist believes that Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under paragraph 4(b)(iii) and there is no need to consider further grounds of 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 <xn--bloombeg-m0d.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
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