Bloomberg Finance L.P. v. Galina Shatalova
Claim Number: FA1909001863410
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by Brendan T. Kehoe of Bloomberg L.P., New York, USA. Respondent is Galina Shatalova (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <enbloomberg.info>, registered with Registrar of Domain Names REG.RU LLC.
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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 23, 2019; the Forum received payment on September 23, 2019.
On September 23, 2019, Registrar of Domain Names REG.RU LLC confirmed by e-mail to the Forum that the <enbloomberg.info> domain name is registered with Registrar of Domain Names REG.RU LLC and that Respondent is the current registrant of the name. Registrar of Domain Names REG.RU LLC has verified that Respondent is bound by the Registrar of Domain Names REG.RU 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 October 1, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 21, 2019 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@enbloomberg.info. Also on October 1, 2019, 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 23, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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. Complainant has rights in the BLOOMBERG mark through its trademark registrations around the world, including with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,736,744, registered Jul. 15, 2003). Respondent’s <enbloomberg.info> domain name is confusingly similar to Complainant’s BLOOMBERG mark as it incorporates the mark, merely adding the letters “en,” and a “.info” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <enbloomberg.info> domain name. Respondent is not licensed or permitted to use Complainant’s BLOOMBERG mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent attempts to pass off as the disputed domain name’s resolving website in order to falsely promote its own products.
Respondent registered and uses the <enbloomberg.info> domain name in bad faith. Respondent attempts to attract, for commercial gain, users to the disputed domain name where it passes off as Complainant. Respondent also failed to respond to Complainant’s cease and desist letters. Finally, Respondent had actual knowledge of Complainant’s rights in the BLOOMBERG mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response. However, Respondent consented to transfer the <enbloomberg.info> domain name via email. The Panel notes that the disputed domain name was registered on May 6, 2019.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Panel notes that the Registration Agreement is written in Russian, thereby making the language of the proceedings in Russian. Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the submission of a Russian language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant claims rights in the BLOOMBERG mark based upon registration of the mark with the USPTO (e.g., Reg. No. 2,736,744, registered Jul. 15, 2003). Registration of a mark with the USPTO is sufficient to establish rights in that mark. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark). The Panel therefore holds that Complainant’s registration of the BLOOMBERG mark with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4(a)(i).
Complainant next argues Respondent’s <enbloomberg.info> domain name is confusingly similar to the BLOOMBERG mark, as the name incorporates the mark, merely adding the letters “en” and a “.info” gTLD. Such changes are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See Bittrex, Inc. v. Sergey Valerievich Kireev / Kireev, FA 1784651 (Forum June 5, 2018) (holding that the domain name consists of the BITTREX mark and adds “the letters ‘btc’ and the gTLD .com which do not distinguish the Domain Name from Complainant’s mark.”). The Panel therefore determines that the <enbloomberg.info> domain name is confusingly similar to the BLOOMBERG mark per Policy ¶ 4(a)(i).
Complainant argues that Respondent has no rights or legitimate interests in the <enbloomberg.info> domain name, as Respondent is not commonly known by the disputed domain name, 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 a disputed domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”). The WHOIS information of record identifies the registrant of the at-issue domain name as “Galina Shatalova,” and no information on the record indicates Respondent was authorized to register a domain name incorporating Complainant’s mark. The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the <enbloomberg.info> domain name.
Complainant further argues Respondent’s lack of rights or legitimate interests in the <enbloomberg.info> domain name is demonstrated by its failure to use the name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Complainant contends Respondent uses the disputed domain name to pass off as Complainant in order to promote its own products and services. Use of a disputed domain name to pass off as a complainant does not amount to a bona fide offering of goods or services or for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See ShipChain, Inc. v. 谢东东 / 谢东东, FA 1785189 (Forum June 21, 2018) (“The resolving webpages between Complainant’s and Respondent’s websites are virtually the same. Respondent’s use of the disputed domain name does not confer rights and legitimate interests under Policy ¶¶4(c)(i) and (iii).”); see also Nokia Corp. v. Eagle, FA 1125685 (Forum Feb. 7, 2008) (finding the respondent’s use of the disputed domain name to pass itself off as the complainant in order to advertise and sell unauthorized products of the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)). Complainant provides a screenshot of the disputed domain name’s resolving website which features news articles and financial data information in connection with the BLOOMBERG mark. The Panel therefore finds that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or for a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
Thus Complainant has also satisfied Policy ¶ 4(a)(ii).
Complainant claims Respondent’s use of the <enbloomberg.info> domain name to pass off as Complainant in order to compete with Complainant’s business demonstrates that Respondent registered and used the domain name in bad faith. Use of a domain name to create a false impression of affiliation with a complainant in order to compete with and disrupt the complainant’s business is behavior indicative of bad faith registration and use per Policy ¶¶ 4(b)(iii) and (iv). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the disputed domain name was registered and used in bad faith where the respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . to perpetrate a fraud upon individual shareholders who respected the goodwill surrounding the AIG mark”). Complainant provides a screenshot of the disputed domain name’s resolving website which features news articles and financial data information in connection with the BLOOMBERG mark. The Panel therefore finds that Respondent registered and used the domain name in bad faith per Policy ¶ 4(b)(iv).
Complainant further contends that in light of the fame and notoriety of Complainant's BLOOMBERG mark, it is inconceivable that Respondent could have registered the <enbloomberg.info> domain name without knowledge of Complainant's rights in the mark. The Panel agrees that Respondent had actual knowledge of Complainant's rights in the mark, in light of Respondent’s incorporation of the well-known BLOOMBERG mark in its entirety in its domain name, and in light of Respondent’s use of the domain name.
Thus, Complainant has also 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 <enbloomberg.info> domain name be TRANSFERRED from Respondent to Complainant
David A. Einhorn, Panelist
Dated: October 29, 2019
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