Bloomberg Finance L.P. v. Keanne WebbBrathwaite / Coco Deep Fried Chicken et al.
Claim Number: FA2009001915127
Complainant: Bloomberg Finance L.P. of New York, New York, United States of America.
Respondent: Keanne WebbBrathwaite / Coco Deep Fried Chicken of Edmonton, Alberta, CA.
thebloomberg.online of Edmonton, Alberta, Canada.
REGISTRIES and REGISTRARS
Registries: DotOnline Inc.
Registrars: PDR Ltd. d/b/a PublicDomainRegistry.com
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 Examiner in this proceeding.
Flip Jan Claude Petillion, as Examiner.
Complainant submitted: September 29, 2020
Commencement: September 30, 2020
Response Date: October 3, 2020
Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules").
Complainant requests that the domain name be suspended for the life of the registration.
Clear and convincing evidence.
The Complainant, Bloomberg Finance L.P., is active in the electronic trading, financial news, and information industry and claims to use the sign “BLOOMBERG” since at least 1993. The Complainant invokes several BLOOMBERG trademarks registered by its subsidiary Bloomberg Finance One L.P., e.g. US Trademark No. 3,430,969 registered on May 20, 2008 with first uses in commerce since at least 1992.
The Respondent registered the disputed domain name <thebloomberg.online> on March 26, 2020. The Complainant provides a screen print showing that the disputed domain name resolved to a web page mentioning “TheBloomberg” and several other terms in the top navigation bar such as “12magma”, “clickfunnelblog”, “easyonline”, etc. The body of the web page only mentions a standard message “Hello world!” inviting to add a first post, which may indicate that the web page did not yet include any substantive content. In its Response, the Respondent apologizes “for accidentally using both the domain name and brand” and indicates that it has “had the host take down both the domain and website”.
URS Procedure 1.2.6, requires Complainant to prove, by clear and convincing evidence, each of the following three elements to obtain an order that a domain name should be suspended.
[URS
1.2.6.1] The registered domain name(s) is/are identical or confusingly similar
to a word mark:
(i) for which the Complainant holds a valid national or regional registration
and that is in current use; or
(ii) that has been validated through court proceedings; or
(iii) that is specifically protected by a statute or treaty in effect at the
time the URS complaint is filed.
Determined: Finding for Complainant
The record makes clear that the Complainant "holds a valid national or regional registration and that [it] is in current use". The second-level portion of the disputed domain name incorporates the Complainant’s BLOOMBERG trademark in its entirety and simply precedes it with the generic word “the”. The Examiner finds that this addition does not prevent confusing similarity with the Complainant’s mark. As the top level domain is irrelevant in assessing identity or confusing similarity, the new gTLD “.ONLINE” is of no consequence here (Facebook Inc. v. Radoslav, Claim Number: FA1308001515825). As the registered domain name is confusingly similar to a word mark for which the Complainant holds a valid national or regional registration that is in current use, the Examiner considers that the Complainant has satisfied the first element of the URS in accordance with paragraph 1.2.6.1 of the URS.
[URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name.
Determined: Finding for Complainant
The Complainant has not authorized the Respondent to use its registered BLOOMBERG trademark. The Respondent has not submitted any evidence to prove that she is commonly known under the disputed domain name, evidence about rights or legitimate interest in BLOOMBERG and the disputed domain name, or evidence about a fair use either. The Respondent has simply apologized “for accidentally using both the domain name and [the Complainant’s] brand”.
Where a domain name consists of a trademark plus an additional term, the Examiner finds that such composition cannot constitute fair use if it effectively impersonates or suggests sponsorship or endorsement by the trademark owner (see section 2.5.1 of the WIPO Overview 3.0). The disputed domain name incorporates the Complainant’s BLOOMBERG trademark and simply precedes it with the word “the”. Combined with the gTLD “.ONLINE”, which can be considered as referring to the Complainant’s online activities, the Examiner finds that the disputed domain name carries a risk of implied affiliation with the Complainant and cannot constitute fair use. Therefore, Examiner finds that the second element for Complainant to obtain the suspension of a domain name under URS 1.2.6.2 has also been proven.
[URS
1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
a. Registrant has registered or acquired the domain name primarily for the
purpose of selling, renting or otherwise transferring the domain name
registration to the complainant who is the owner of the trademark or service
mark or to a competitor of that complainant, for valuable consideration in
excess of documented out-of-pocket costs directly related to the domain name;
or
b. Registrant has registered the domain name in order to prevent the trademark
holder or service mark from reflecting the mark in a corresponding domain name,
provided that Registrant has engaged in a pattern of such conduct; or
c. Registrant registered the domain name primarily for the purpose of
disrupting the business of a competitor; or
d. By using the domain name Registrant has intentionally attempted to attract
for commercial gain, Internet users to Registrant’s web
site or other on-line location, by creating a likelihood of confusion with
the complainant’s mark as to the source, sponsorship,
affiliation, or endorsement of Registrant’s web site or location or of a
product or service on that web site or location.
Determined: Finding for Complainant
Although the Respondent claims that she is “not familiar with the domain trademark”, it is inconceivable to the Examiner that the Respondent was unaware of the Complainant and its trademark rights when it registered the disputed domain name. The Complainant has provided evidence of the well-known and distinctive character of its BLOOMBERG trademark, which has also been confirmed in previous UDRP and URS cases. The disputed domain name has been registered almost three decades after the Complainant’s first use of the BLOOMBERG mark in commerce, if not more. Therefore, the Examiner finds that Respondent must have been aware of the Complainant's trademark when registering the disputed domain name, which indicates bad faith.
The disputed domain name used to refer to a web page prominently mentioning “TheBloomberg” in the top left corner. While the purpose of this web page is unclear, the Examiner finds that, given the well-known character of the Complainant’s BLOOMBERG trademark, it is difficult to imagine any actual or future good faith use of the disputed domain name by the Respondent.
The Respondent did not contest the above and indicated it already took down the website related to the disputed domain name, which can be considered as an admission of the Complainant’s claim. Therefore, Examiner finds that the third element for the Complainant to obtain the suspension of a domain name under URS 1.2.6.3 has been proven.
The Complaint was neither abusive nor contained material falsehoods.
After reviewing the parties’ submissions, the Examiner determines that
the Complainant has demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain name be SUSPENDED for the duration of the registration.
<thebloomberg.online>
Flip Jan Claude Petillion, Examiner
Dated: October 8, 2020
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