DECISION

Bloomberg L.P. v. Azra Khan

Claim Number:  FA0309000192248

PARTIES

Complainant is Bloomberg L.P., New York, NY (“Complainant”) represented by Alexander Kim.  Respondent is Azra Khan, Rawalpindi, Pakistan (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <bllomberg.com>, registered with iHoldings.com Inc. a/k/a Dotregistrar.com.

PANEL

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.

Hon. Ralph Yachnin as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on August 29, 2003; the Forum received a hard copy of the Complaint on September 9, 2003.

On September 2, 2003, iHoldings.com Inc. a/k/a Dotregistrar.com confirmed by e-mail to the Forum that the domain name <bllomberg.com> is registered with iHoldings.com Inc. a/k/a Dotregistrar.com and that Respondent is the current registrant of the name. iHoldings.com Inc. a/k/a Dotregistrar.com has verified that Respondent is bound by the iHoldings.com Inc. a/k/a Dotregistrar.com 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 September 15, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 6, 2003 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@bllomberg.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 October 14, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Ralph Yachnin 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.

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s <bllomberg.com> domain name is confusingly similar to Complainant’s BLOOMBERG mark.

2. Respondent does not have any rights or legitimate interests in the <bllomberg.com> domain name.

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

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant is one of the largest providers of worldwide financial news and information and other related goods and services.  Complainant has over 8,000 employees in over 100 offices worldwide.  Complainant registered the BLOOMBERG mark with the U.S. Patent and Trademark Office (“USPTO”) on March 18, 1997 (Reg. No. 2,045,947).  Complainant has also obtained registration for marks containing the BLOOMBERG mark in over ninety countries.  Complainant registered the following domain names:  <bloomberg.com> (September 29, 1993), <bloomberg.net> (March 8, 1997) and <bloomberg.org > (December 14, 1999).  Complainant uses the <bloomberg.com> domain name in conjunction with its business operations. 

Respondent registered the <bllomberg.com> domain name on December 22, 2001.  Respondent’s domain name redirects Internet users to the <ownbox.com> website, which provides links to websites that offer such things as home mortgage loans and dating services.  When Internet users attempt to close the window to the <ownbox.com> website, they are exposed to a pop-up window that provides links to several topics including gambling.  Respondent has a history of engaging in the practice of “typosquatting.”  See e.g. Bank of Am. Corp. v. Khan, FA 124515 (Nat. Arb. Forum Oct. 28, 2002) (Panel found that Respondent had engaged in typosquatting by registering and using the <wwwbankamerica.com> domain name); see also Black & Decker Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (Panel found that Respondent had engaged in typosquatting by registering and using the <wwwdewalt.com> domain name).

DISCUSSION

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 Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) 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; 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.

Identical and/or Confusingly Similar

Complainant has established rights in the BLOOMBERG mark through the mark’s registration with the USPTO.  See Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) (finding that Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.  Respondent has the burden of refuting this assumption); see also Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive and have acquired secondary meaning”).

Respondent’s <bllomberg.com> domain name is confusingly similar to Complainant’s BLOOMBERG mark because the domain name merely misspells the mark by replacing the letter “o” with the letter “l,” which is adjacent to the letter “o” on a standard keyboard.  Hence it is easy for an Internet user to inadvertently misspell Complainant’s mark due to the close proximity of the two letters on a standard keyboard.  The mere misspelling of Complainant’s mark is insufficient to circumvent the Panel from finding the domain name confusingly similar to the BLOOMBERG mark.  See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a Respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to Complainant’s marks); see also Hewlett-Packard Co. v. Zuccarini, FA 94454 (Nat. Arb. Forum May 30, 2000) (finding the domain name <hewlitpackard.com> to be identical or confusingly similar to Complainant’s HEWLETT-PACKARD mark).

The Panel finds that Policy ¶ 4(a)(i) has been satisfied. 

Rights or Legitimate Interests

Due to Respondent’s failure to contest the allegations of the Complaint, the Panel may find that Respondent lacks rights or legitimate interests in the <bllomberg.com> domain name.  See 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); see also Canadian Imperial Bank of Commerce v. D3M Virtual Reality, Inc., AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interests where no such right or interest was immediately apparent to the Panel and Respondent did not come forward to suggest any right or interest it may have possessed).

Furthermore, Respondent’s <bllomberg.com> domain name takes advantage of a common typographical error made by Internet users when they attempt to access Complainant’s <bloomberg.com> website because the letter “l” and the letter “o” are adjacent to each other on a standard keyboard.  Due to Respondent’s past history of engaging in typosquatting, the Panel presumes that Respondent commercially benefits from Internet users who misspell Complainant’s mark by receiving click-through-fees from Internet vendors who receive visitors via Respondent’s domain name.  Respondent’s use of the <bllomberg.com> domain name constitutes “typosquatting,” which is evidence that Respondent is not using the domain name to make a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See Encyclopaedia Britannica, Inc. v. Zuccarini, D2000-0330 (WIPO June 7, 2000) (finding that fair use does not apply where the domain names are misspellings of Complainant's mark); see also Nat’l Ass’n of Prof’l Baseball Leagues, Inc.  v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … as a means of redirecting consumers against their will to another site, does not qualify as a bona fide offering of goods or services, whatever may be the goods or services offered at that site.”).

In addition, Respondent is not licensed or authorized to use or register domain names that incorporate Complainant’s mark.  The WHOIS information for the <bllomberg.com> domain name fails to establish that Respondent is commonly known by the disputed domain name or by the BLLOMBERG.COM mark.  Therefore, the Panel concludes that Respondent lacks rights or legitimate interests in the <bllomberg.com> domain name pursuant to Policy ¶ 4(c)(ii).  See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) Respondent was not a licensee of Complainant; (2) Complainant’s prior rights in the domain name preceded Respondent’s registration; (3) Respondent was not commonly known by the domain name in question); see also Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent was not commonly known by the disputed domain name or used the domain name in connection with a legitimate or fair use).

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. 

Registration and Use in Bad Faith

It may be inferred that Respondent had actual or constructive knowledge of Complainant’s rights in the BLOOMBERG mark because the mark is recognized internationally and is registered with the USPTO.  Registration of a domain name, despite knowledge of Complainant’s rights, is evidence of bad faith registration pursuant to Policy ¶ 4(a)(iii).  See Digi Int’l, Inc.  v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (holding that “there is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively”); see also Exxon Mobil Corp. v. Fisher, D2000-1412 (WIPO Dec. 18, 2000) (finding that Respondent had actual and constructive knowledge of Complainant’s EXXON mark given the worldwide prominence of the mark and thus Respondent registered the domain name in bad faith); see also Orange Glo Int’l v. Blume, FA 118313 (Nat. Arb. Forum Oct. 4, 2002) (“Complainant’s OXICLEAN mark is listed on the Principal Register of the USPTO, a status that confers constructive notice on those seeking to register or use the mark or any confusingly similar variation thereof”).

Furthermore, Respondent has engaged in the practice of typosquatting, which is evidence that the <bllomberg.com> domain name was registered and used in bad faith.  See Black & Decker Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding the <wwwdewalt.com> domain name was registered to “ensnare those individuals who forget to type the period after the “www” portion of [a] web-address,” evidence that the domain name was registered and used in bad faith); see also Nat’l Ass’n of Prof’l Baseball Leagues, Inc.  v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … is the intentional misspelling of words with intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors.  Typosquatting is inherently parasitic and of itself evidence of bad faith”).

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied. 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

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

Hon. Ralph Yachnin, Panelist

Justice, Supreme Court, NY (Ret.)

Dated:  October 28, 2003

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