Bloomberg Finance L.P. v. George Washere
Claim Number: FA2208002010415
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by Madeline Kessler of Bloomberg L.P., New York, USA. Respondent is George Washere (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bloombergnewsweek.com>, registered with eNom, 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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 31, 2022; the Forum received payment on August 31, 2022.
On August 31, 2022, eNom, LLC confirmed by e-mail to the Forum that the <bloombergnewsweek.com> domain name is registered with eNom, LLC and that Respondent is the current registrant of the name. eNom, LLC has verified that Respondent is bound by the eNom, 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 31, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 20, 2022 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@bloombergnewsweek.com. Also on August 31, 2022, 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 26, 2022, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <bloombergnewsweek.com> domain name is confusingly similar to Complainant’s BLOOMBERG mark.
2. Respondent does not have any rights or legitimate interests in the <bloombergnewsweek.com> domain name.
3. Respondent registered and uses the <bloombergnewsweek.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant provides financial news and data and related goods and services. Complainant holds registrations in various countries for its BLOOMBERG marks, including with the United States Patent and Trademark Office (“USPTO”): for the BLOOMBERG mark (Reg. Nos. 2,736,744 and 3,430,969); for the BLOOMBERG.COM mark (Reg. No. 2769201); for the BLOOMBERG NEWS mark (Reg. No. 2,266,559); and for the BLOOMBERG BUSINESS WEEK mark (Reg. No. 4,446,627).
Respondent registered the <bloombergnewsweek.com> domain name on May 9, 2022, and fails to make active use of the domain name.
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 finds that Complainant has rights in the BLOOMBERG marks based on registration with the USPTO. See Nintendo of America Inc. v. lin amy, FA 1818485 (Forum Dec. 24, 2018) ("Complainant’s ownership of a USPTO trademark registration for the NINTENDO mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i).”)
Respondent’s <bloombergnewsweek.com> domain name uses the dominant portions of Complainant’s BLOOMBERG, BLOOMBERG.COM, BLOOMBERG NEWS, and BLOOMBERG BUSINESSWEEK marks. Simply combining descriptive or generic parts of Complainant’s marks or omitting the word “business” does not distinguish the disputed domain name from Complainant’s marks. See The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) (“[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i).”); see also Empowered Medical Solutions, Inc. d/b/a QRS-Direct and QRS Magnovit AG v. NULL NULL / QUANTRON RESONANCE SYSTEMS / JIM ANDERSON / HTR / unknown HTR / HTR, FA 1784937 (Forum June 8, 2018) (“Adding or removing descriptive terms or a gTLD is insufficient to differentiate a disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i).”). Therefore, the Panel finds that Respondent’s <bloombergnewsweek.com> domain name is confusingly similar to Complainant’s BLOOMBERG marks.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent has no rights or legitimate interests in the disputed domain name, as Respondent is not commonly known by the domain name. Complainant has not licensed or otherwise permitted Respondent to use Complainant’s BLOOMBERG marks. The WHOIS information of record lists “George Washere” as the registrant of the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb.18, 2000) (finding (i) the fact that the complainant has not licensed or otherwise permitted the respondent to use any of its trademarks, and (ii) the fact that the word TELSTRA appears to be an invented word, and as such is not one traders would legitimately choose unless seeking to create an impression of an association with the complainant, demonstrate that the respondent lacks rights or legitimate interests in the domain name); see also 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)).
Complainant also argues that Respondent is not using the <bloombergnewsweek.com> domain name for a bona fide offering of goods or services or a noncommercial or fair use. Under Policy ¶¶ 4(c)(i) and (iii), failing to make active use of a disputed domain name does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“both Domain Names resolve to a web site that shows the words, ‘Not Found, The requested URL / was not found on this server.’ Inactive holding of a domain name does not qualify as a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i), or a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii).”); see also Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Complainant shows that Respondent uses the disputed domain name only to reroute to third-party websites. The Panel finds that this is not a bona fide offering of goods or services or a noncommercial or fair use, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) or (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered the <bloombergnewsweek.com> domain name in bad faith with actual notice of Complainant’s rights in the BLOOMBERG marks. To support this assertion, Complainant demonstrates that the BLOOMBERG marks have been in use since 1993, have a high-profile presence in the financial and media sectors, and is the subject of substantial consumer recognition and goodwill. The Panel agrees and finds bad faith under Policy ¶ 4(a)(iii). See Gilmour v. Cenicolla, D2000-1459 (WIPO Dec. 15, 2000) (finding bad faith registration of the <davidgilmour.com> domain name where the respondent knew of the complainant’s fame long before the registration of the domain name and registered the name in order to “trade off that reputation by creating a false association between that domain name and the Complainant’s trademark”).
Complainant demonstrates that Respondent registered and uses the disputed domain name to display links to various unrelated websites. Using a confusingly similar domain name to offer links, even if unrelated to complainant’s, evinces bad faith use and registration. See Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained). Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
The Panel finds that Complainant has 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 <bloombergnewsweek.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: September 29, 2022
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