Bloomberg Finance L.P. v. Bloomberg Terminal / Bloomberg
Claim Number: FA2210002015582
Complainant is Bloomberg Finance L.P. (“Complainant”), represented by Madeline Kessler of Bloomberg L.P., New York, USA. Respondent is Bloomberg Terminal / Bloomberg (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bloomberg-terminal.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on October 11, 2022; Forum received payment on October 11, 2022.
On October 12, 2022, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to Forum that the <bloomberg-terminal.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 12, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 1, 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@bloomberg-terminal.com. Also on October 12, 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, Forum transmitted to the parties a Notification of Respondent Default. Respondent did however send an email to the Forum, see below.
On November 7, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 states that since the inception of its business in 1981, and the adoption of the “Bloomberg” name in 1987, it has become one of the largest providers of global financial news and data and related goods and services and is recognized and trusted worldwide as a leading source of financial information and analysis. One of the many products and services offered by Complainant is the Bloomberg Terminal service, which provides access to news, analytics, communications, charts, liquidity, functionalities, and trading services. There are currently over 320,000 Bloomberg Terminal subscribers worldwide. Complainant is headquartered in New York City, and employs 19,000 people in 176 locations around the world. Complainant has rights in the BLOOMBERG mark through its registration in the United States in 2003; the mark is registered elsewhere around the world and it is well known.
Complainant alleges that the disputed domain name is identical or confusingly similar to its BLOOMBERG mark as it incorporates the mark in its entirety and merely adds a hyphen, the generic/descriptive term “terminal”, and the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its BLOOMBERG mark in any way. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use; instead, Respondent the disputed domain name is redirected to Complainant’s legitimate website.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith because disputed domain name is redirected to Complainant’s legitimate website. Respondent had actual or constructive knowledge of Complainant’s rights in its mark. Respondent failed to reply to Complainant’s cease-and-desist letter.
B. Respondent
Respondent failed to submit a Response in this proceeding. In its email to the Forum, Respondent states that it does not understand what rules it is alleged to have violated. The disputed domain name is redirected to Complainant’s legitimate website, which proves that Respondent does not have any bad intentions to misuse Complainant’s mark. The disputed domain name was available for registration without any restrictions. Respondent bought it in order to protect Complainant’s mark without asking for any fees from Complainant. If Complainant wished to protect its mark, why didn’t it acquire the disputed domain name?
Complainant owns the mark BLOOMBERG and uses it to provide financial news and data and related goods and services. The mark is well known.
Complainant’s rights in its mark date back to at least 2003.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name is redirected to Complainant’s legitimate website.
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 disputed domain name incorporates Complainant’s BLOOMBERG mark in its entirety and merely adds a hyphen, the generic/descriptive term “terminal”, and the “.com” generic top-level domain (“gTLD”). Adding a hyphen, a generic/descriptive term and the “.com” gTLD is generally insufficient in differentiating a disputed domain name from the mark it incorporates under Policy ¶ 4(a)(i). See Sutton Group Fin. Servs. Ltd. v. Rodger, D2005-0126 (WIPO June 27, 2005) (finding that the domain name <suttonpromo.com> is confusingly similar to the SUTTON mark because the addition of descriptive or non-distinctive elements to the distinctive element in a domain name is immaterial to the analysis under Policy ¶ 4(a)(i)); see also Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy); see also Innomed Techs., Inc. v. DRP Servs., FA 221171 (Forum Feb. 18, 2004) (finding that hyphens and top-level domains are irrelevant for purposes of the Policy). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: absent a response, WHOIS information may be used to determine whether a respondent is known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Where the WHOIS is related to the disputed domain name, the Panel may still find the respondent lacks rights or legitimate interest in the disputed domain name if the respondent lacks authorization to use the complainant’s mark and the respondent fails to provide affirmative evidence in support of its identity. See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding that, although the respondent listed itself as “Jessie McKoy / Ripple Reserve Fund” in the WHOIS contact information, it did not provide any affirmative evidence to support this identity; combined with the fact that the complainant claimed it did not authorize the respondent to use the mark, the respondent is not commonly known by the domain name). Here, the WHOIS information for the disputed domain name identifies the registrant as “Bloomberg Terminal / Bloomberg” but Respondent provides no affirmative evidence in support of this identity and no evidence in the record suggests Respondent is authorized to use the BLOOMBERG mark. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name to redirect Internet users to Complainant’s own website. Using a confusingly similar domain name to redirect to a complainant’s own website may not be a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Medline, Inc. v. Domain Active Pty. Ltd., FA 139718 (Forum Feb. 6, 2003) (finding no rights or legitimate interests where the respondent merely redirected the <wwwmedline.com> domain name to the complainant’s own website at <medline.com>). Therefore, the Panel finds that Respondent is not using the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or 4(c)(iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent alleges that it registered the disputed domain name in order to protect Complainant’s mark, without asking for fees. Since Respondent does not provide any evidence to support this allegation, the Panel does not accept it. See by analogy Richard Izzo Toughman Enterprises v. TJ Tryon, FA1704001728347 (Forum May 30, 2017) (“While this Panel is willing to give Complainant some leeway because Complainant is pro se, that does not allow Complainant to ignore its burden of proof. A complainant fails to make a prima facie case when it fails to provide any evidence whatsoever of a respondent’s use of a disputed domain name.”).
According to paragraph 4.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”), a Panel may conduct limited factual research regarding disputed domain names:
Noting in particular the general powers of a panel articulated inter alia in paragraphs 10 and 12 of the UDRP Rules, it has been accepted that a panel may undertake limited factual research into matters of public record if it would consider such information useful to assessing the case merits and reaching a decision.
This may include visiting the website linked to the disputed domain name in order to obtain more information about the respondent or its use of the domain name, consulting historical resources such as the Internet Archive (www.archive.org) in order to obtain an indication of how a domain name may have been used in the relevant past, reviewing dictionaries or encyclopedias (e.g., Wikipedia), or accessing trademark registration databases.
The Panel has determined that there are MX records for the disputed domain name, therefore it is possible that Respondent may intend to use it in connection with emails for phishing. However, for the reasons given below, the Panel does not need to determine whether Respondent actually does intend to engage in a phishing scheme.
Respondent alleges that the disputed domain name was available for registration without any restrictions. This is not correct. A domain name cannot be validly acquired if it is registered and used in violation of the Policy. For the reasons given above and below, the Panel finds that such is the case here.
Respondent asks why, if Complainant wished to protect its mark, it didn’t register the disputed domain name. Under the Policy, Complainant has no obligation to register offending domain names. On the contrary, the remedy available to Complainant is to file a UDRP proceeding, which is what Complainant has done here.
As already noted, Respondent uses the disputed domain name to redirect Internet users to Complainant’s own website. Using a disputed domain name to redirect to a complainant’s own website can evidence bad faith per Policy ¶ 4(a)(iii). See Verizon Trademark Servs. LLC v. Boyiko, FA 1382148 (Forum May 12, 2011) (“The Panel finds that Respondent’s registration and use of the confusingly similar disputed domain name, even where it resolves to Complainant’s own site, is still registration and use in bad faith pursuant to Policy ¶ 4(a)(iii).”). Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the disputed domain name redirects to Complainant’s legitimate website and Respondent admits it did that deliberately. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under 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 <bloomberg-terminal.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: November 8, 2022
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