Generic Top Level Domain Name (gTLD) Decisions

Complainant is Bloomberg L.P., New York, NY, USA ("Complainant"), represented by Alexander Kim. Respondent is Hebat Interactive, Jalan Loke Yew, KL, MALAYSIA ("Respondent").

The domain name at issue is "bloomberk.com" registered with Bulkregister.

The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as a panelist in this proceeding. Carolyn Marks Johnson sits as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on February 23, 2001; the Forum received a hard copy of the Complaint on March 5, 2001.

On February 27, 2001, Bulkregister confirmed by e-mail to the Forum that the domain name <bloomberk.com> is registered with Bulkregister and that Respondent is the current registrant of the name. Bulkregister has verified that Respondent is bound by the Bulkregister registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the "Policy").

On March 6, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 26, 2001 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@bloomberk.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On April 5, 2001, pursuant to Complainant’s request to have the dispute decided by a one member Panel, the Forum appointed Carolyn Marks Johnson 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." 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 maintains the following:

Respondent’s <bloomberk.com> domain name is confusingly similar to Complainant’s registered trademark.

Respondent has no rights or legitimate interests in the <bloomberk.com> domain name.

Respondent registered and used the <bloomberk.com> domain name in bad faith.

B. Respondent did not submit a Response in this case.

Since 1983, Complainant has become one of the largest providers, worldwide, of financial news and information and related goods and services. Complainant registered the trademark and service mark BLOOMBERG, March 18, 1997, on the Principal Register of the United States Patent and Trademark Office as Registration No. 2,045,947. The complaint is also based upon the trademark and service mark BLOOMBERG FINANCIAL MARKETS registered in Malaysia (Classes 09, 16, 36) as Registration Numbers: 90/06903, 90/06904, A90/06904.

In addition, Complainant has obtained registrations for marks containing the word BLOOMBERG in over seventy-five (75) countries around the world. Complainant has used its registered mark in connection with products and services such as: computers, computer products, publications, financial services, radio and television broadcasting, entertainment services, and news reporting services. Complainant has invested substantial resources promoting its mark and has created significant goodwill and widespread consumer recognition.

Complainant is the owner of the following domain names: <bloomberg.com> registered

September 29, 1993; <bloomberg.net> registered March 8, 1997; and <bloomberg.org> registered December 14, 1999. <Bloomberg.com> has been in continuous use by Complainant since its registration in 1993. In addition, Complainant has registered over 400 other domain names incorporating the word "bloomberg."

Respondent registered the <bloomberk.com> domain name on April 12, 2000.

Respondent advertises that the domain name is "available" for lease or sale, and encourages interested parties to email "info@hebat.com" for more information.

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."

In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

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;

(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.

The <bloomberk.com> domain name is a misspelling of Complainant’s <bloomberg.com> and BLOOMBERG marks. The replacement of the letter "g" in Complainant’s mark with the letter "k" in Respondent’s domain name does not take the Respondent’s registration of the domain name out of the realm of Policy 4(a)(i). See State Farm Mut. Auto. Ins. Co. v. Try Harder & Co., FA 94730 (Nat. Arb. Forum June 15, 2000) (finding that the domain name <statfarm.com> is confusingly similar to the Complainant’s mark "State Farm"); see also Reuters Limited v Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive).

The Panel therefore finds that Respondent registered a domain name that is confusingly similar to Complainant’s registered mark in violation of Policy 4(a)(i).

Respondent has failed to come forward to demonstrate any rights or legitimate interests in the <bloomberk.com> domain name. See 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"); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that Respondent has no rights or legitimate interest in the domain name because the Respondent never submitted a response nor provided the panel with evidence to suggest otherwise).

Respondent’s registration and use of <bloomberk.com> does not evidence any use in connection with a bona fide offering of goods or services pursuant to Policy 4(c)(i). At the time this action was initiated, Respondent’s website advertised the sale or lease of the domain name in dispute in addition to other domain names listing the offered sale price. Respondent’s activities on <bloomberk.com> fail to evidence a showing of use in connection with a bona fide offering of goods or services. See J. Paul Getty Trust v. Domain 4 Sale & Co., FA 95262 (Nat. Arb. Forum Sept. 7, 2000) (finding rights or legitimate interests do not exist when one has made no use of the websites that are located at the domain names at issue, other than to sell the domain names for profit); see also Ritz-Carlton Hotel v. Club Car Executive, D2000-0611 (WIPO Sept. 18, 2000) (finding that prior to any notice of the dispute, the Respondent has not used the domain names in connection with any type of bona fide offering of goods and services).

Furthermore, Respondent has not demonstrated that it is commonly known by the confusingly similar <bloomberk.com> domain name. See Vestel Elektronik Sanayi ve Ticaret AS v. Mehmet Kahveci, D2000-1244 (WIPO Nov. 11, 2000) ("…merely registering the domain name is not sufficient to establish rights or legitimate interests for purposes of paragraph 4(a)(ii) of the Policy").

Respondent fails to establish that it is making a legitimate noncommercial or fair use of the domain name, as stated in Policy 4(c)(iii). See Kosmea Pty Ltd. v. Carmel Krpan, D2000-0948 (WIPO Oct. 3, 2000) (finding no rights in the domain name where Respondent has an intention to divert consumers of Complainant’s products to Respondent’s site by using Complainant’s mark).

The Panel cannot find any rights or legitimate interests that Respondent may posses in the registration and use of the <bloomberk.com> domain name. See Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc. and D3M Domain Sales, AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interest where no such right or interest is immediately apparent to the Panel and Respondent has not come forward to suggest any such right or interest that it may possess); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that "Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the Domain Names")

The Panel therefore concludes that Complainant has met its burden under Policy (4)(ii).

Because of the well-known and famous nature of Complainant’s marks, it may be assumed that Respondent had notice of Complainant’s marks at the time Respondent registered the infringing <bloomberk.com> domain name. See Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum, Apr. 17, 2000) (evidence of bad faith includes actual or constructive knowledge of commonly known mark at the time of registration).

Respondent’s offering to lease or sell the domain name <bloomberk.com> evidences bad faith in registration and use of the confusingly similar mark. Respondent’s website fails to exhibit any other purpose than to offer to sell or lease the <bloomberk.com> domain name, which is confusingly similar to Complainant’s registered marks. See American Anti-Vivisection Soc’y v. "Infa dot Net" Web Services, FA 95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that "general offers to sell the domain name, even if no certain price is demanded, are evidence of bad faith"); see also Educational Testing Service v. TOEFL, D2000-0044 (WIPO Mar. 16, 2000) (finding that a general offer of sale combined with no legitimate use of the domain name constitutes registration and use in bad faith).

Because BLOOMBERG has no meaning other than to identify Complainant’s company and its namesake, the Panel concludes that Respondent registered and used the confusingly similar <bloomberk.com> domain name in bad faith. See Dr. Karl Albrecht v. Eric Natale, FA 95465 (Nat. Arb. Forum Sept. 16, 2000) (finding registration in bad faith based where there is no reasonable possibility, and no evidence from which to infer that the domain name was selected at random since it entirely incorporated Complainant’s name).

Having established all three of the elements under the ICANN Policy, the Panel concludes that the requested relief should be and that it is hereby granted.

Accordingly, it is Ordered that the domain name <bloomberk.com> be transferred from Respondent to Complainant.